RAMASAMI AIYANGAR Vs. GOVINDA IYER

JUDGEMENT

(1.) Mr. Ganesa Aiyar takes the preliminary objection that the suit is for damages below Rs. 500 and that consequently there is no second appeal. In order to understand the nature of the suit, it ought to be stated that the plaintiff purchased the properties in suit in auction in September 1908. He was put in possession on the 15th January 1909. Exhibit D, the attakshi says that on the date of the delivery, tuvarai crops upon a portion of the property had been removed away and that the purchaser was put in possession of the lands and the crops on the remaining property. In the plaint, the plaintiff says that his cause of action for the harvested crops arose on the 3rd January 1909 and for the crops cut and carried away since delivery in February 1909. So far as the claim for the harvested cropsis concerned, it is taken away from the cognisance of the Small Cause Court by the second part of Article 31 of the second schedule to the Provincial Small Causes Courts Act. It would be a claim for an account which under the ruling in Savarimuthu v. Aithurusu Rowther (1907) 18 M.L.J. 88 is triable only by the regular Courts. As regards the claim for the subsequent cutting and carrying away of the crops, it is no doubt a claim for damages which are within the cognisance of a Small Cause Court. We agree with the decisions in Annamalai v. Subramanyam (1892) I.L.R. 15 M. 298 Raghava Reddy v. Krishna Reddy (1912) 23 M.L.J. 193 and Rama Aiyar v. Saminatha Aiyar (1911) I.L.R. 85 M. 726. We think the decision of Munro, J. in Venkoba Rao v. Muthn Aiyar (1907) 18 M.L.J. 88 is not correct and we are not prepared to follow it. If a claim is partly within the jurisdiction of the Regular Courts and, partly within the jurisdiction of Small Cause Courts, there can be no question that the plaintiff is entitled to file a suit for the consolidated amount in the Regular Courts. It is in this view we hold that the suit was rightly brought in the District Munsif s Court and that a second appeal lies. We overrule the preliminary objection. On the merits the question is whether the lease for 3 years granted by the judgmentdebtor is binding on the auctionpurchaser. There are two aspects of this question. (1) Does lis pendens continue in a mortgage suit up to the sale of the property? and (2) if it so continues, is the purchaser affected to his prejudice by the outstanding lease? The views held by the various High Courts have not been uniform. Therefore, it is desirable to examine the principles on which the lis is made to depend in such cases. It is clear that until decree in a mortgage suit any dealing with the property mortgaged will be effected by lis pendens. If by virtue of the mortgage decree, the property is regarded as being under attachment till the sale takes place, on the analogy of Section 64 of the Code of Civil Procedure, private dealings can be avoided by persons claiming under the decree. It was suggested for the respondent, that when an order for sale is made the lis ceases. The effect of this contention will be to enable the judgment- debtor to deprive the purchaser of possession. He can grant a perpetual lease and thus render it impossible for the auction-purchaser to get possession of the property. I think the sounder view is to hold that the property continues to be subjected to lis pendens until the actual sale is effected.

(2.) Now as to the authorities. In Kolluri Nagabhushanam v. Ammanna (1880) I.L.R. 3 M. 71, it was assumed without discussion that the lis would continue up to sale. In Mallikarjunadu Setti v. Lingamurti Pantulu etc. (1900) I.L.R. 25 M. 244 at p. 278:12 M.L.J. 279 (F. B), there is an obiter to the effect that the principle of Salt v. Cooper (1880) 16 Ch. D. 544, would apply to India. The rights of a mortgagee under the English law are so different from those of a mortgagee in this country that it is not safe to apply the English analogy here. In Calcutta, there is a course of decisions enunciating the view that lis pendens affects the mortgaged property up to sale. See Surjuram Marwari v. Barhamdeo Persad (1905) 2 C.L.J. 288, Bhagwan Das Khettiry v. Nilkanta Ganguli (1904) 9 C.W.N. 171, Kissorylal Chowdhury v. Raja Sewbux Bogla (1909) 13 C.W.N. 787, Madaneswar Singh v. Mahamaya Prosad Singh (1911) 15 C W.N. 672, Brajah Nath Pal v. Joggeswar Bagchi (1908) 9 C.L.J. 346 and Modan Mohan Singh v. Rajkishori Kumari (1912) 17 C.L.J. 381. In Allahabad the same view is taken: Thakur Prasad v. Gaya Sahu (1898) I.L.R. 20 A. 849 and Chuni Lal v. Abdul Ali Khan (1901) I.L.R. 23 A. 881. The viewtaken in Bombay does not commend itself to me. In Shivajuram v. Waman (1867) I.L.R. 22 B. 989, while holding that the lis continues after decree, the learned Judges say that its effect would depend upon the continuance or subsistence of execution applications. Samal v. Babagi (1901) I.L.R. 28 B. 361 is to the same effect. All the authorities are reviewed in Bhoje Mahadev Parab v. Gangabai (1913) I.L.R. 87 B. 621. Mr. Justice Batchelor says that if execution proceedings are not taken, there can be no contentious suit or proceeding. The decree in question was a maintenance decree which created a charge. The learned Judge seemed inclined to hold that the case of a mortgage decree may be different. Mr. Justice Shah says that if there was a considerable interval between the passing of a decree and of an application to enforce it, the Us cannot subsist all the time. The effect of the Bombay rulings is to make the lis depend not upon the subsistence of the decree in the suit, but upon the active prosecution of applications for enforcing it. With all deference I am unable to follow this reasoning. The essence of the doctrine is that the property in dispute is the subjectmatter of a suit. There is no attachment in the case of mortgage decrees and all that is claimed in execution is to carry out the terms of the decree. Therefore it is the fact that the property is directed to be sold that is the basis of the doctrine of lis pendens and not the fact that applications are prosecuted to enforce the terms of the decree. The proceedings in question continue the mortgage suit up to sale (see Kerakoose v. Brooks (1860) 8 M.I.A. 339 at 341). I am therefore of opinion that at the time of the sale to the plaintiff the property was subject to lis pendens.

(3.) On this conclusion the point pressed by Mr. Venkatarama Sastriar arises that his client is entitled to mesne profits from the date of the sale. We think that in estimating the profits, the amount of rent secured on the property by the judgment-debtor may be taken as the amount payable to the plaintiff. Mr. Ganesa Aiyar contended that in estimating that amount, payments made to the judgment- debtor should be credited against the purchaser. His argument was that as leases of this kind are resorted to in the usual course of management, any equities subsisting between the lessor (Judgment-debtor) and the lessee must bind the auction purchaser as well. I am willing to concede that a lease of this nature is within the powers of an ordinary and prudent owner of property. Radhika v. Radhamani (1888) 1. L.R. 7 M. 96 and Subharaza v. Sitarama Raz (1016) M.W.N. 171 support this position. But the further contention that the purchaser is affected by the equities against the Judgment-debtor is not consistent with the language of Section 52 of the Transfer of Property Act. Subharaza v. Sitarama Raz (1902) I.L.R. 25 M. 214:12 M.L.J. 279 is a peculiar case. In that case the purchaser claimed rent and not mesne profits and he prayed for the whole amount against the tenant, with an alternative prayer against the Judgment-debtor for the amount recovered by the latter from the tenant. The actual decision in that case was perfectly right on the frame of the plaint. I do not think the learned Judges intended to lay down either that the purchaser is bound to implead the Judgment- debtor or that he can have his claim for the payment made to the Judgment- debtor only against the latter. Prima facie, the purchaser is entitled to look to the person in possession from the date that title accrued to him, for mesne profits or damages. The payment in advance under the lease, although it may be the usual course adopted as between lessor and lessee should not drive the purchaser to seek his remedy against a person to whom the money was paid. A person who obtains a lease when the lis subsists takes considerable risks and if he pays money under it before he had enjoyment of the land, he cannot resist the right of the purchaser whatever may be his rights to get back the money from his lessor.