Decided on June 01,1900



Rampini and Pratt, JJ - (1.) The facts of this case are as follows:--The plaintiffs sue for a declaration that a certain plot of 2 bighas of land with the building thereon is their property by right of purchase on the 28th December 1892 at an execution of a decree obtained against Suleman Bukt. They further pray that the defendant may be restrained from selling this property in execution of a mortgage- decree obtained by the defendant's predecessor against Prince Rahimuddin. The defendant's predecessor sued Prince Rahimuddin on an equitable mortgage, and obtained a decree on the 6 October 1890. Subsequently Prince Rahimuddin died, and his heirs, inoluding his son Suleman Bukt, were substituted at their own request as defendants in the mortgage case. Afterwards the mortgage-decree was made absolute; upon which, that is, on the 12th November 1892, Suleman Bukt raised an objection that the property belonged to him in his own right. This objection was allowed by the Subordinate Judge of the 24-Parganas. The plaintiffs thereafter, as already mentioned, purchased the property. Then, on the 20th February following, the decree in the execution case was prepared, and an appeal was preferred to this Court, which was successful on the 18 June 1894. It was held by this Court on the facts that the property in dispute was not the property of Suleman Bukt in his personal capacity. Now the Lower Court has held (1) that the plaintiffs as the purchasers of Suleman Bukt's rights are bound by the decision of this Court, dated the 18 June 1894," and (2) that in any case the plaintiffs purchased pendente lite, and accordingly acquired no right in the property.
(2.) Dr. Rash Behary Ghose on behalf of the appellants contends that the Judge's decision on both points is wrong. We, however, cannot agree with him. In the first place, as the learned pleader for the appellant admits, it makes no difference that the appellant purchased the right of Suleman Bukt at an execution sale, and not at a private sale. See Gobind Chunder Roy v. Guru Churn Kurmokar (l881) I.L.R. 15 Cal. 94 (97, 99). In the second place, as the appellants purchased the rights of Suleman Bukt, and are in every way his representatives in interest and as will presently be shown, they purohased pendente lite, and as the proceedings in which Suleman Bukt's objection was disallowed, though subsequent to their purchase, were yet proceedings which they "might expect would take place" [see Kasumunnissa Bibee V/s. Nilratan Bose (1881) I.L.R. 8 Cal. 79 (85.) See also Kailas Chandra Ghose V/s. Fulchand Jakarri (1871) 8 B.L.R. 474--Rep.] they are as much bound by a decision against Suleman Bukt, though personally no parties to it, as he, Suleman Bukt himself, is. It is true that the question which Suleman Bukt was allowed,by the Subordinate Judge of the 24-Parganas to raise, was one which as the substituted heir of his father Prince Rahimuddin he perhaps should not have been allowed to raise; but he did raise it of his own accord, and he is bound by the ultimate decision of the objection, and the appellants as his representatives in interest and purchasers pendente lite are equally bound by it.
(3.) It has, however, been urged that the appellants purchased at a time when Suleman Bukt's objection had been allowed, and when no appeal against the Subordinate Judge's order had been preferred. We have been referred to the terms of s. 52 of the Transfer of Property Act which prohibits the transfer of property during "the active prosecution " in any Court of a contentious suit relating to such property. It is said that when the appellants purchased, the suit of the defendant was not being "actively prosecuted." Dr. Rash Behary Ghose has also referred us to Sugden on Vendors and Purchasers, p. 758, and to other English authorities.;

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