RAMASWAMI PILLAI Vs. TRICHINOPOLY CO-OPERATIVE CREDIT BANK LTDREPRESENTED BY ITS SECRETARY, VKRISHNASWAMI PILLAI

JUDGEMENT

(1.) The question we have to decide is, whether the suit mortgage is affected by the doctrine of lis pendens. In 1912 a suit for maintenance was instituted against the first defendant by a widow of his family. In 1914 a decree was passed in that suit; in 1921 the suit mortgage was executed by the first defendant in favour of the plaintiff; in pursuance of an execution petition filed by the widow on the 28 August, 1925, the property in question was brought to sale and on the 9 December, it was purchased in Court auction by the fourth defendant, to whom in due course a sale certificate was issued in February, 1926. The present suit to enforce the mortgage was filed on the 22nd December, 1925.

(2.) The lower Courts have repelled the charges of fraud and collusion both in regard to the mortgage in favour of the plaintiff and the sale to the fourth defendant in the Court-auction. The first question that then arises is, was there in the suit, within the meaning of Section 52 of the Transfer of Property Act, a right to immoveable property directly and specifically in question? That the doctrine of lis pendens applies to maintenance actions, can on the authorities admit of no doubt. The discussion therefore mainly turned on the question, whether the widow claimed in the suit, that her maintenance should be made a charge on any specific immoveable properties. Although the plaint in the maintenance action has not been filed, it is perfectly clear from the written statement and the decree to which our attention has been drawn, that the widow specifically mentioned the properties and claimed a charge over them. Mr. Rajah Aiyar's contention that the rule of lis pendens does not apply, as the charge was claimed on all the properties of the family, is entirely without force. True, if the properties are not specified or if they are enumerated merely for enabling the Court to fix the quantum of maintenance-in either case the doctrine will have no application, but if the property is sufficiently designated so as to make it directly and specifically the subject-matter of the litigation, the fact that the charge is claimed over all the properties of the family, can make no difference. If in Rattamma V/s. Seshachalam Sarma (1926) 52 M.L.J. 520 decided by Devadoss, J., on which Mr. Rajah Aiyar relies, is implied a different rule, we must with all respect dissent from it. The contention therefore that the property mortgaged to the plaintiff was not directly and specifically involved in the suit, must be overruled.

(3.) The next question that arises is, whether in a maintenance suit the decree terminates the litigation or the lis must be deemed to continue even after the decree. In Bhoje Mahadev Parab V/s. Gangabai (1913) I.L.R. 37 Bom. 621 on which the plaintiff's Counsel relies, the facts are these. In 1902 defendant No. 1 obtained a maintenance decree, which declared a charge in her favour on the family property; in 1906the judgment-debtors sold a portion of the property to the plaintiff; defendant No. 1 in 1907 applied to execute the decree; in the execution proceedings one of the lands sold to the plaintiff was put to sale and purchased by defendant No. 3 in 1910; the plaintiff sued for a declaration that the sale to him was not affected by the subsequent execution-sale. It was held that the doctrine of lis pendens had no application to the case, for the plaintiff purchased the property four years after the decree had been passed and when no execution proceeding was pending and in such a case (in the opinion of the learned Judge) it could not be said that the purchase by the plaintiff was made during the active prosecution of a contentious suit or proceeding. This case no doubt fully supports the plaintiff, but the principle laid down in it has not been approved by our Court. In Ramasami Aiyangar V/s. Govinda Aiyar the question arose whether in a mortgage suit lis pendens ceases upon the passing of a decree. Seshagiri Aiyar, J., observes: I think the sounder view is to hold that the property continues to be subjected to lis pendens until the actual sale is effected.