Sarat Chandra Ghose vs Chintamani Behera and Others

Ray, J.—The disputed properties originally belonged to defendant 8 to be hereinafter referred to as the mortgagor. He in consideration of a loan gave a simple mortgage of the properties to defendant 2 on 19-10-1930. The mortgagor gave a second mortgage by conditional sale to the plaintiff on 9-6-1933. In the year 1936, the first mortgagee brought a suit No. 166 for enforcement of his mortgage and if need be, for sale of the mortgaged properties. He, however, did not implead the second mortgagee. He obtained a mortgagee-decree on 28-8-1936, and in execution thereof the mortgaged properties, were sold to an outsider, that is, defendant 1 of this suit on 15-8-1938. By the time this auction-purchase was made, a suit for enforcement of the second mortgage was pending it being original suit No. 9 of 1938 in which a preliminary decree was obtained on 10-5-1938. The prior mortgagee not being a necessary party to the mortgage suit on the foot of a puisne mortgage, the question of his being impleaded as a party does not arise for consideration at all. The second mortgagee obtained a preliminary decree which was made absolute, on 7-8-1939. About five months before that, defendant 1 had obtained possession through Court. In this state of facts the plaintiff has brought the present suit for declaration of his title, and recovery of possession on fulfilment of such conditions as he may be directed to do in view of the relative rights and liabilities between the parties.

The learned Courts below have dismissed the plaintiff''s suit on the ground that he has not been able to prove the second mortgage bond in a manner prescribed by law.

The very simple question that should have set at naught all the complexities raised by the Courts below has unfortunately been completely overlooked. The position is that defendant 1''s purchase dated 15-8-1938, was during the pendency of the lis on the foot of the second mortgage. He, therefore, as an auction-purchaser is hit by the rule of lis pendens which amounts to saying that he is bound by the final decree secured by the second mortgagee who is the present plaintiff. Defendant l, therefore, cannot be, heard to say that the very basis of the decree has to be undone and the mortgage suit has to be tried afresh in his presence.

Section 52, T.P. Act, defines the doctrine of lis pendens and it has been authoritatively pronounced, time and again, that the principle of lis pendens applies as well to private transfers as to transfers in execution of decrees in court auction. Mr. De invited my attention to a Full Bench. decision of the Allahabad High Court in Ram Sanehi Lal and Another Vs. Janki Prasad and Others in order to support his contention that the plaintiff''s claim of title to the disputed properties by enforcement of his mortgage by conditional sale is hit by the rule of lis pendens having been acquired or completed during the pendency of the suit by the prior mortgagee. I find no support for such a proposition in the Full Bench decision for the simple reason that no lis on the foot of the first mortgage was pending after 15-8-1938, when the mortgage-decree obtained by the, first mortgagee was satisfied. According to the explanation appended to Section 52 lis comes to an end as soon as the decree relating to an immovable property is exhausted. Secondly, the rule of lis pendens applies to transfers during the pendency of a suit relating to immovable property and not to suits relating to the same property instituted during the pendency thereof.

This authority, however, makes the present position clear, namely, that defendant 1''s purchase is hit by the rule of lis pendens. The passage which contains enunciation of this principle occurs at p. 480, col. 1 of the report. The passage reads:

The third principle is that the language of Section 52 has been held to be applicable not only to private transfers but also to court sales held in execution of decrees. Section 2(d) does not make Section 52 inapplicable to Ch. 4 which deals with mortgages. This is now well settled. Similarly if while a suit of a subsequent mortgagee for. the enforcement of his mortgage against the mortgagor, without impleading the prior mortgagees, is pending, any attempt on the part of the prior mortgagee to get that interest sold in his own decree would be equally, governed by Section 52.

Under the circumstances, it would be futile to contend that, as against defendant 1 whose purchase is hit by the rule of lis pgndens on account of the subsequent mortgage suit pending at the time of his purchase, the plaintiff will have to re-open the mortgage suit and establish the fact of the mortgage by proving the mortgage bond in accordance with law. The matter is concluded by the decree obtained by him on the basis of his mortgage by which defendant 1 is bound.

The position, therefore, is that the plaintiff is the owner of the disputed properties in his right as a subsequent mortgagee and is a person against whom all rights of redemption have been lost by the parties concerned. This also includes defendant 1 who, however, has a different position, namely, that of a subrogee of a prior mortgage. As pronounced in the Full Bench case, above referred to, the clear position is that the plaintiff Will now be entitled to redeem defendant 1. who thereupon on his part will be called upon to redeem the plaintiff not only by paying up his dues under the second mortgage but also by paying up what he pays to defendant 1 by way of redeeming the prior mortgage, because in the happening of that event, he becomes a subrogee to the position of the prior mortgagee again. If defendant 1 redeems the plaintiff, he will be entitled to retain the property. In case he does not choose to do so, the plaintiff will be entitled to retain the property after redeeming defendant 1. This is the final definition of the respective position of the parties with regard to the respective rights and liabilities against each other the details of which, however, have to be worked out by the trial Court who will fix the time for redemption by respective parties and calculate and pronounce the amounts that are due by each of the parties against the other.

The case is, therefore, remitted back to the trial Court, who will pass his final orders in the light of the principles laid down above and after working out the rights and liabilities of the respective parties as against each other and assigning to them the respective positions that I have clearly defined in the previous paragraphs.

In the result, the judgments and decrees of the Courts below are set aside, the appeal is allowed and the case is sent back to be disposed of in accordance with law bearing in mind the observations hereinbefore made. I make no Order as to cost of this Court.