RAJKISHORE LALL Vs. BEGUM SULTAN JEHAN

JUDGEMENT

(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