PARVATI AMMAL Vs. GOVINDARAJA

JUDGEMENT

(1.) THIS second appeal is argued mainly with reference to the property covered by sale-deed Exhibit B. That sale was made after the Suit No. 13 of 1915 (on the file of the Court of the Temporary Subordinate Judge of Madura) to enforce a mortgage on the property by its sale had been instituted. The question that arises is whether the doctrine of lis pendens applies to the sale m question and whether it should be held to have been subject to the result of the mortgage-decree. The learned Subordinate judge has answered this question in the negative relying on the ruling in Upendra Chandra Singh V/s. Mohri Lal Marwari 31.C.745. We are unable to concur in that view. That ruling is inconsistent with the ruling of the Privy Council in Faiyaz Husain Khan V/s. Munshi Prag Narain 29 A. 339 : 11 C.W.N. 561 : 4 A.L.J. 344 : 5 C. L.J. 563 : 17 M.L.J. 263 : 9 Bom. L. R. 656 : 2 M.L.T. 191 : 1o 0.C. 314 : 34 I.A. 102 (P.C.) and has not been followed even in Calcutta. See Tinoodhan Chatterjee V/s. Trilokya. Saran Sanyal 18 lnd. Cas. 177; 17 C.W.N. 413. It has been dissented from in this Court in Poolakkal Kathur v. Chennagadam Mammadissa 20 Ind. Cas. 976 : 38 M. 450 : (1913) M.W. N. 672 : 14 M.L.T. 185 and the learned Vakil for the respondent has rightly not attempted to support it. As regards the question whether the fact that the suit was subsequently compromised made it a non-contentious suit, it is clear from the authorities that it did not. See Mnnamalai Cheitiarv.Malayandi Appaya Naik 29M. 426 : 1 M.L.T. 145 : 16 M.L.J. 372. (F.B.) and Krishnappa V/s. Shiwappa 31 B. 393 : 9 Bom. L.R. 530. : We must, therefore, hold that the sale under Exhibit B is affected by the mortgage-decree and plaintiff's suit with reference to it must be dismissed. As regards the sale under Exhibit A, however, plaintiff is entitled to a declaration that the property is not liable to be sold in execution of the mortgage-decree and to an injunction to prevent such a sale. The decree of the lower Appellate Court will be modified accordingly The parties will pay and receive proportionate costs throughout.