HARLAL Vs. LALA PRASAD

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. For the proper determination of the question of law raised in the present case it is necessary to state the following facts which are either admitted or proved.

(2.) ONE Shriram, the predecessor-in-title of the first three defendants, executed a mortgage (Ex. P-14) of his 1 anna 4 pies share in Mauza Bodra for Rs. 700 on 2nd October 1913 in favour of one Nathmal. Nearly six years later on 26th May 1919. Shriram agreed to sell to the predecessors-in-title of defendants 4 to 7, the 8 pies share out of the mortgaged property for Rs. 1,350, of which Rs. 250 were paid at once and possession of the property sold was delivered to the vendees. The remaining Rs. 1,100, were retained by the vendees under an express stipulation for payment to Nathmal on his mortgage. Shriram failed to execute a sale deed and therefore the vendees had to file G.S. No. 192/19, for specific performance of the agreement of sale and secured a decree in the first Court on 23rd April 1920 which was confirmed in second appeal on 30th June 1921. It was not till five months after the decision of the second appeal that the second application for execution of the decree was filed by the vendees decree-holders; but it was struck off as infructuous on 10th December 1921, because Shriram had died. Nearly three months later another application for execution of the decree was filed against the first three defendants, but the decree-holders did not proceed with it and got it struck off on 28th August 1922, on the ground that they wanted to adjust Nathmal's debt.

(3.) THE suit out of which the present second appeal arises was commenced by the plaintiffs to enforce the mortgage dated 21st June 1924. The second set of defendants resisted the claim on the grounds, that the plaintiff's mortgage was not enforceable as against them because it had been effected during the pendency of their own litigation relating to the specific performance of the contract of sale. In the alternative they also pleaded that the mortgage was ineffectual because their own title to the property related back to the year 1919 when the agreement for sale in their favour was made which was prior to the date on which the plaintiffs took their mortgage. Both these pleas were upheld by the trial Court with the result that the plaintiff's claim as against them and the 8 pies share in their possession was dismissed. On plaintiff's appeal the District Judge, Raipur, however held that the doctrine of lis pendens did not apply to the case because there was no active prosecution by the second set of defendants of a contentious suit or proceedings in connexion with the property in their possession. He accordingly allowed the appeal and passed a decree against the second set of defendants and the property in their possession. It is against this decree that the second set of defendants have come up in second appeal.