Ramaswami Pillai vs The Trichinopoly Co-operative Credit Bank Ltd. and Others

Venkatasubba Rao, J.—The question we have to decide is, whether the suit mortgage is affected by the doctrine of lis pendens. In 1912 a

suit for maintenance was instituted against the first defendant by a widow of his family. In 1914 a decree was passed in that suit; in 1921 the suit

mortgage was executed by the first defendant in favour of the plaintiff; in pursuance of an execution petition filed by the widow on the 28th August,

1925, the property in question was brought to sale and on the 9th December, it was purchased in Court auction by the fourth defendant, to whom

in due course a sale certificate was issued in February, 1926. The present suit to enforce the mortgage was filed on the 22nd December, 1925.

The lower Courts have repelled the charges of fraud and collusion both in regard to the mortgage in favour of the plaintiff and the sale to the

fourth defendant in the Court-auction. The first question that then arises is, was there in the suit, within the meaning of Section 52 of the Transfer of

Property Act, a right to Immovable property directly and specifically in question? That the doctrine of lis pendens applies to maintenance actions,

can on the authorities admit of no doubt. The discussion therefore mainly turned on the question, whether the widow claimed in the suit, that her

maintenance should be made a charge on any specific Immovable properties. Although the plaint in the maintenance action has not been filed, it is

perfectly clear from the written statement and the decree to which our attention has been drawn, that the widow specifically mentioned the

properties and claimed a charge over them. Mr. Rajah Aiyar''s contention that the rule of lis pendens does not apply, as the charge was claimed on

all the properties of the family, is entirely without force. True, if the properties are not specified or if they are enumerated merely for enabling the

Court to fix the quantum of maintenance-in either case the doctrine will have no application, but if the property is sufficiently designated so as to

make it directly and specifically the subject-matter of the litigation, the fact that the charge is claimed over all the properties of the family, can make

no difference. If in Rattamma v. Seshachalam Sarma (1926) 52 M.L.J. 520 decided by Devadoss, J., on which Mr. Rajah Aiyar relies, is implied

a different rule, we must with all respect dissent from it. The contention therefore that the property mortgaged to the plaintiff was not directly and

specifically involved in the suit, must be overruled.

The next question that arises is, whether in a maintenance suit the decree terminates the litigation or the lis must be deemed to continue even after

the decree. In Bhoje Mahadev Parab v. Gangabai I.L.R.(1913) 37 Bom. 621 on which the plaintiff''s Counsel relies, the facts are these. In 1902

defendant No. 1 obtained a maintenance decree, which declared a charge in her favour on the family property; in 1906the judgment-debtors sold

a portion of the property to the plaintiff; defendant No. 1 in 1907 applied to execute the decree; in the execution proceedings one of the lands sold

to the plaintiff was put to sale and purchased by defendant No. 3 in 1910; the plaintiff sued for a declaration that the sale to him was not affected

by the subsequent execution-sale. It was held that the doctrine of lis pendens had no application to the case, for the plaintiff purchased the property

four years after the decree had been passed and when no execution proceeding was pending and in such a case (in the opinion of the learned

Judge) it could not be said that the purchase by the plaintiff was made during the active prosecution of a contentious suit or proceeding. This case

no doubt fully supports the plaintiff, but the principle laid down in it has not been approved by our Court. In Ramasami Aiyangar Vs. Govinda Iyer

and Another, the question arose whether in a mortgage suit lis pendens ceases upon the passing of a decree. Seshagiri Aiyar, J., observes:

I think the sounder view is to hold that the property continues to be subjected to lis pendens until the actual sale is effected.

Referring to Bhoje Mahadev Parab v. Gangabai I.L.R.(1913) 37 Bom. 621 just cited, the learned Judge goes on to say that he is unable to

follow the reasoning in that case. Bakewell, J., in the same case points out:

Under the English Chancery Practice an action for foreclosure or sale continues until an order absolute for foreclosure is made, or if an order for

sale is made until the property is sold and the proceeds are paid to the parties; and the High Court of Calcutta has in effect followed this

procedure, which also obtains on the Original Side of this Court under its special rules of practice.

He observes that if the matter were res Integra, he should be prepared to hold that a mortgage suit remains pending until the rights of parties are

finally adjusted i.e., until the sale monies are distributed or a final decree is passed u/s 90 of the Transfer of Property Act; but he felt himself bound

by the decision of the majority in Mallikarjunadu Setti v. Lingamurti Pantulu I.L.R.(1900) 25 Mad. 244 : 1900 12 M.L.J. 279 (F.B.) which in his

opinion involved the conclusion that a mortgage suit ceased to be actively prosecuted when the decree is passed. Seshagiri Aiyar, J., however,

treating the observations in that case as obiter, held, as already stated, that the lis continues even after the decree. As regards the actual decision in

the case, both the learned Judges agreed that the lease executed by the mortgagor before the sale was inoperative. We are of the opinion that the

correct principle is that formulated by Seshagiri Aiyar and Bakewell, JJ., in this case and that the Full Bench decision cannot be regarded as an

authority in the contrary sense. In two recent cases Abdul Muhamad Rowther v. Seethalakshmi Ammal (1930) 33 L.W. 109 and Aravamudhu

Aiyangar v. Zamindarini Srimalhi Abhiramavalli Ayah (1933) 66 M.L.J. 566, the view of Seshagiri Aiyar, J., has been adopted. One of the

sections of the Transfer of Property Act amended by the Amending Act of 1929 in Section 52 and the Legislature has refused to give effect to the

Bombay view, for the explanation that has newly been added provides, that the suit shall be deemed to continue until complete satisfaction of the

decree has been obtained or has become unobtainable by reason of the expiration of any period prescribed by the law of limitation. We must

therefore hold, disagreeing with the Lower Court that the lis continued after the decree and that the mortgage in favour of the plaintiff is affected by

lis pendens.

We may here mention that the arrears of maintenance clue to the widow at the time of the execution-sale amounted to Rs. 253 odd. The fourth

defendant purchased the property for Rs. 200 subject to the charge for subsequent maintenance payable to the widow. The plaintiff offers to

redeem the property by paying to the fourth defendant the amount of the paramount charge which he recognises, namely, Rs. 253 odd and says

that after redemption, he will similarly hold the property subject to the charge in respect of future maintenance. The position is shortly this: the

fourth defendant represents the prior chargeholder and the plaintiff is the subsequent encumbrancer. The latter would ordinarily be entitled to

redeem the prior charge, but the result of our holding that his mortgage is affected by lis pendens, is that he is deprived of that right.

The other contentions raised by Mr. Rajah Aiyar do not require serious notice.

In the result, the second appeal is allowed and the suit as against the fourth defendant is dismissed; the plaintiff will have no relief as against the

suit property. We direct each party to bear his costs throughout.