Decided on November 22,1944

A. Kulandaivelu Pillai Appellant


Chandrasekhara Ayyar, J. - (1.) THE plaintiff is the appellant. He purchased the property at an auction held by the Official Receiver on 20th December, 1927. The defendant is a purchaser of the same property on 25th April, 1940, in execution of a charge decree in her favour of the year 1911. At first, the suit was only for an injunction but later a prayer for possession was added on the ground that the defendant dispossessed the plaintiff. The District Munsiff decreed the plaintiff's suit holding that he was a bona fide purchaser for value without notice of the charge decree in execution of which the defendant purchased the property. But on appeal the Subordinate Judge dismissed the plaintiff's suit not because the plaintiff was not such a bona fide purchaser but on the ground that the plaintiff's purchase from the Official Receiver was affected by the doctrine of lis pendens. The Us Q.S. No. 44 of 1911, fructified into a charge decree for maintenance on 30th September, 1913. It is for some arrears due under this decree that the suit property was brought to sale and purchased by the defendant (who is herself the decree -holder). To O.S. No. 44 of 1911, the insolvents were parties. In fact the charge was obtained against them on their adjudication. The Official Receiver was brought on record in their place On 10th February, 1927.
(2.) MR . Ramabhadrachariar, the learned advocate for the appellant, raised three points in support of the appeal. He contended that under the law as it stood prior to the amending Act of 1929 introducing the explanation to Section 52 of the Transfer of Property Act a sujt which had resulted in a decree would not furnish a basis for the application of the doctrine of lis pendens as regards a transfer or alienation made by one of the parties when no execution of the decree was pending. The second point was that Section 52 will not apply as the properties became vested in the Official Receiver by operation of law under the Insolvency Act. The third point which he urged is that a bond fide transferee for value without notice is protected against a charge under Section 106 of the Act, notwithstanding, lis pendens.
(3.) THERE is no substance in the first point. Even without the explanation, Madras has always taken the view that a suit does not end with the decree but only with satisfaction of the decree or when its execution becomes barred by limitation and that till then, so long as there is no collusion between the parties, the suit must be deemed to be pending and actively being prosecuted. The explanation was: added apparently to give sanction to this view as the correct one, as against the views taken by other Courts as regards the meaning to be given to the words " contenttious" and "active prosecution " which were found in the section and which led to the consideration of nice questions as to whether the non -prosecution of a suit for a certain period and consequent delay would negative the application of the doctrine and whether the suit can be regarded as contested until a written statement is filed. The learned advocate cited Madhuram Sand v. Kirtya Nand, (1944) 2 M.L.J. 343 as a recent decision indicating that in cases governed by the old section as it stood minus the explanation, the Privy Council were of the opinion that the other view about necessity for the pendency of execution proceedings was right. There is no warrant whatever for importing any such idea into the judgment. They happened to deal with a case that arose before the explanation was introduced and where there was an execution proceeding actively being prosecuted. They referred to these two facts to repel the contention of the counsel for the appellant in that case that the suit was not being actively prosecuted.;

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