RAJKISHORE LALL Vs. BEGUM SULTAN JEHAN
HIGH COURT OF PATNA
BEGUM SULTAN JEHAN
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Ramaswami, J. -
(1.) This appeal is brought on behalf of the decree-holders against an order of the Subordinate Judge of Gaya deciding that the properties belonging to respondent Begum Sultan Jehan are not liable to be sold in the execution proceedings.
(2.) The essential facts are as follows. On 1-9-1917 defendant, Maharaj Kumar of Tekari, granted an annuity of Rs. 600 a month in favour of Babu Nandkishore Lal, ancestor of the decree-holders, creating a charge on certain properties including the properties mentioned in Schedule 1A of the execution petition. In 1935, the decree-holders brought a suit in which they claimed arrear of annuity from April 1930 to February 1935 and in default an order for the sale of the properties charged. On 4-4-1940 the suit was decreed. In appeal the High Court affirmed the decree of the Subordinate Judge making a slight modification with respect to the order of the properties to be sold. In Execution Case No. 46 of 1947 the decree-holders applied for execution of the decree. In the course of execution, respondent No. 1 Begum Sultan Jehan purchased the properties described in schedule 1A for a sum of Rs. 44,000 and odd in the execution case. The sale took place on 20-9-1948. Meanwhile the decree-holders brought a second suit (Title Mortgage Suit No. 32 of 1947) for arrear of maintenance for the period from May 1935 to May 1937. In this suit, a preliminary decree was granted on 17-5-1948. A final decree was obtained on 15-9-1949. The decree-holders then sought to execute this decree against properties other than those purchased by the respondent. The judgment-debtors objected that Begum Sultan Jehan should be made a party in the execution case and her properties described in Schedule 1A should be sold first before other properties were sold in satisfaction of the decree. The objection was based on the circumstance that in Title Mortgage Suit No. 32 of 1947 the order in which the properties should be sold had been fixed by decree of the court. The decree-holders were directed to realise the annuity (1) firstly from the properties in the hands of defendant No. 1, (2) secondly from the properties transferred to Kumar Rani Sayeeda Khatoon, defendant No. 5, (3) thirdly from the properties sold to Rani Bhuneshwari Koer by defendant No. 1, (4) fourthly from the properties transferred to Siya Singh, and (5) fifthly from the properties in the hands of defendant No. 16, Maharaja of Darbhanga, The decree-holders applied for amendment of the execution petition by adding respondent as a party and including her properties. The amendment was allowed on 9-10-1950 by the Subordinate Judge. The respondent Sultan Jehan then appeared in the case and objected that she had no notice of the second decree nor she was aware of the direction given by the court with respect to the order in which the properties were to be sold. On 6-10-1951 the Subordinate Judge upheld the objection of Sultan Jehan holding that she had no notice of the decree granted in Suit No. 32 of 1947 and that the properties described in schedule 1A were not therefore liable to be sold in the execution case.
(3.) In support of this appeal, Mr. Rajkishore Prasad addressed the argument that the purchase by the respondent of schedule 1A properties was affected by the doctrine of 'lis pendens' and it is immaterial whether she had notice of the second decree or not. It is true that the doctrine of 'lis pendens' applies to purchase at auction sale in execution of a decree against the parties to the suit as well as to private alienations by the parties. But, in my opinion, the purchase by the respondent of schedule 1A properties in the present case is not affected by the doctrine of lis pendens. In 'Bellamy v. Saline', (1857) 1 De. G. & J. 566, Lord Cran-worth explained that the doctrine of lis pendens was intended to protect the parties to litigation against alienations by their opponents pending suit. He observed that lis pendens affects a purchaser
"not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property, in dispute so as to prejudice the opposite party." Later on he stated "pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent", and in 'Faiyaz Husain Khan v. Prag Narain', 29 All 339 at p. 345 (PC) Lord Macnaughten, delivering the judgment of the Judicial Committee in a case governed by Section 52, Transfer of Property Act referred to this as the 'correct mode of stating the doctrine'. The principle on which the doctrine of lis pendens rests is therefore applicable only as between opponents with regard to alienations made by any one of them during the pendency of the suit. The doctrine cannot be applied as between parties to a suit who are arrayed upon the same side and between whom there is no dispute to be adjudicated. It was argued by Mr. Lalnarain Sinha on behalf of the respondent that an auction purchaser in a mortgage suit is representative of the decree-holders and in support of his argument Counsel relied upon 'Karamat Ali v. Gorakhpur Bank, Ltd.', 44 All 488 and - 'Arthanari Chettiar v. Nagoji Rao', 14 Ind Cas 836 (Mad). Applying the principle to the present case, it is manifest that the respondent and decree-holders are arrayed in the same camp and that the purchase by the respondent is not affected by the doctrine of lis pendens.;
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