Parvathi Ammal vs Govinda Raja and Another

This Second appeal is argued mainly with reference to the property covered by sale deed Ex. B. That sale was made after the suit 13 of 1915

(on the file of the Court of the Temporary Subordinate Judge of Madura) to enforce a mortgage on the property by its sale had been instituted.

The question that arises is whether the doctrine of lis pendens applies to the sale in question and whether it should be held to have been subject to

the result of the mortgage decree. The learned Subordinate Judge has answered this question in the negative relying on the ruling Upendra Chandra

Singh v. Mohan Lal Marwari ILR (1904) Cal. 745. We are unable to concur in that view. That ruling is inconsistent with the ruling of the Privy

Council in Faivath Hussain Khan v. Prag Narain ILR (1907) All. 339 and has not been followed even in Calcutta. See Tinoohan Chatterjee v.

Trilokya Saran Sanyal (1913) 18 I.C. 177. It has been dissented from in this Court in Kathir v. Mareema Dissa I.L.R(1913) . M. 450 and the

learned Vakil for the respondent has rightly not attempted to support it. As regards the question whether the fact that the suit was subsequently

compromised made it a not contentious suit, it is clear from the authorities that it did not. See Annamalai Chettiar v. Malayandi Appavi Naick ILR

(1905) M. 426 and Krishnabba v. Shivabba ILR (1909) B. 383. We must therefore hold that the sale under Ex. B. is affected by the mortgage

decree and plaintiff''s suit with reference to it must be dismissed. As regards the sale under Ex. A. however, plaintiff is entitled to a declaration that

the property is not liable to be sold in execution of the mortgage decree and to an injunction to prevent such a sale. The decree of the lower

appellate Court will be modified accordingly. The Parties will pay and receive proportionate costs throughout.