GOURI DUTT MAHARAJ Vs. SHEIKH SUKUR MOHAMMED

JUDGEMENT

(1.) THIS appeal is from a judgment and decree of the High Court at Fort William in Bengal (Mukherjea and Pal JJ.) dated August 27, 1942, which substantially varied the judgment and decree, dated November 24, 1939, of the Court of the Subordinate Judge at Asansol in a mortgage suit brought by the present appellant as mortgagee.

(2.) THE facts material to the issues now calling for determination may be stated as follows.

(3.) ON July 8, 1938, the appellant instituted the present suit for enforcement of his mortgage and recovery of Rs. 12,000 claimed as then due on foot thereof. The mortgagor did not contest the suit. Of the various defences raised by the other defendants the only one now material is the plea of those representing or claiming through the new partners, both of whom are dead, that the mortgage was effected during the pendency of Suit No.229 and that, in consequence, the appellant's claim was not maintainable by reason of the provisions of Section 52 of the Transfer of Property Act, 1882. That section, as amended, reads thus: During the pendency in any Court having authority in British India, and established beyond the limits of British India by the Governor General in Council, of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in suit, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanationfor the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.