SARAT CHANDRA GHOSE Vs. CHINTAMANI BEHERA

JUDGEMENT

(1.) The disputed properties originally belonged to defendant 8 to be hereinafter referred to as the mortgagor. He in consideration of a loan gave a simple mortgage of the properties to defendant 2 on 19-10-1930. The mortgagor gave a second mortgage by conditional sale to the plaintiff on 9-6-1933. In the year 1936, the first mortgagee brought a suit No. 166 for enforcement of his mortgage and if need be, for sale of the mortgaged properties. He, however, did not implead the second mortgagee. He obtained a mortgagee-decree on 28-8-1936, and in execution thereof the mortgaged properties, were sold to an outsider, that is, defendant 1 of this suit on 15-8-1938. By the time this auction-purchase was made, a suit for enforcement of the second mortgage was pending it being original suit No. 9 of 1938 in which a preliminary decree was obtained on 10-5-1938. The prior mortgagee not being a necessary party to the mortgage suit on the foot of a puisne mortgage, the question of his being impleaded as a party does not arise for consideration at all. The second mortgagee obtained a preliminary decree which was made absolute, on 7-8-1939. About five months before that, defendant 1 had obtained possession through Court. In this state of facts the plaintiff has brought the present suit for declaration of his title, and recovery of possession on fulfilment of such conditions as he may be directed to do in view of the relative rights and liabilities between the parties.

(2.) The learned Courts below have dismissed the plaintiff's suit on the ground that he has not been able to prove the second mortgage bond in a manner prescribed by law.

(3.) The very simple question that should have set at naught all the complexities raised by the Courts below has unfortunately been completely overlooked. The position is that defendant 1's purchase dated 15-8-1938, was during the pendency of the lis on the foot of the second mortgage. He, therefore, as an auction- purchaser is hit by the rule of lis pendens which amounts to saying that he is bound by the final decree secured by the second mortgagee who is the present plaintiff. Defendant l, therefore, cannot be, heard to say that the very basis of the decree has to be undone and the mortgage suit has to be tried afresh in his presence.