RAMCHANDRA GURURAO JOSHI Vs. KAMALABAI SHESHAGIRIRAO SARATHI

JUDGEMENT

(1.) This appeal arises in execution proceedings of a decree for past as well as future maintenance obtained by Ambabai, a widow, against the defendants. It is a compromise decree under which certain properties having fallen to the share of the different defendants were separately charged for the amount of the widow's maintenance. We are only concerned in this litigation with one property, Survey No. 3, at Shinganapur, which in the division of the defendants family came to the share of the first defendant and which according to the plaintiff-widow has been charged for her maintenance. This property has been purchased during the pendency of the suit from the first defendant by the present appellant who was not a party to the suit but who was made a party in the execution proceedings as opponent No. 4. This purchase took place on September 8, 1921, after the suit was filed on June 30 of the same year. On September 13, 1922, there was a compromise between the parties and on September 20 a decree was drawn up in terms of the compromise. The material portion of the decree is that " out of the amount of maintenance, defendant No. 1 is liable to pay Rs. 57, which shall be the amount of his share, and to the extent of this sum the property of his share is subject to the charge." There is no doubt, and it is conceded, that Survey No. 3 fell to his share in the partition. There is, therefore, no question of the liability of defendant No. 1. But the appellant's case is that, although he purchased it during the pendency of the suit, the plaintiff has no right to proceed against it for several reasons.

(2.) It was firstly contended that there was no charge created upon that survey number because the compromise upon which the decree proceeded was to the effect that the property in possession of the defendants was to be charged and that at the time of execution this property was not in the possession of the first defendant but had come to the appellant's possession as purchaser. Secondly, the decree was not definite in creating a charge on this particular property because it only stated that the property of defendant No. 1's share was subject to the charge without mentioning this particular property. Thirdly, it was contended that the charge was not binding on the appellant because he was a bona fide purchaser for value without notice of the charge and, lastly, it was urged that the appellant had purchased the property from defendant No. 1 to pay off the latter's mortgage debt and that therefore he was entitled to be subrogated to the position of the mortgagee, and that debt being paramount to the widow's charge for maintenance, the property in the appellant's hands was not liable to be sold in execution of the decree. A1I these contentions have been repelled by both the lower Courts, and it is ordered that execution should proceed against the property.

(3.) On behalf of the appellant the same grounds which were urged in the lower Courts have been repeated here. It was contended that the provisions of lis pendens which apply to this case were the provisions of Section 52 of the Transfer of Property Act as it stood before the date of the amendment. Even so, however, we do not think that it would make any difference so far as the application of the old section to the facts of the present case is concerned. That section says that during the active prosecution in any Court in British India of a contentious suit or proceeding in which the right to immoveable property was in question, the property cannot be transferred or dealt with so as to affect the rights of any other party thereto under the decree. There is no doubt that the principle of lis pendens applies to a suit for maintenance in which it is sought to have certain properties charged for the maintenance, and the lis would apply to those properties if they are charged under the decree.