(1.) The only question that arises on this appeal is, whether by a sale-deed of the 17 July 1900 immoveable property was transferred to the plaintiff by one Ningappa during the active prosecution of a contentious suit, so as to attract the operation of Section 52 of the Transfer of Property Act. The Suit, No. 460 of 1900, was filed by one Timaraddi on the 18 June 1900 against Ningappa, the present plaintiff's vendor. The evidence according to the District Judge shows "that on the 14 July 1900 the first summons was returned unserved for want of a pointer-out; that on the 10 July Timaraddi applied that the summons might be served on a different village Hanchinal and that on the 12 July the bailiff reported that Ningappa saw, him and ran away. Eventually substituted service was effected on the 4h August 1900."
(2.) It will thus be seen that the transfer was after the institution of the suit, but before service of the summons and on this ground the learned District Judge held that at the date of the transfer the suit had not become contentious.
(3.) The rule of lis pendens in this Presidency is statutory and rests on Section 52 of the Transfer of Property Act which runs as follows:- During the active prosecution in any Court having authority in British India, or established beyond the limits of British India by the Governor General in Council, of a contentious suit or proceeding in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.