ARUNACHALAM CHETTIAR Vs. VALAMBAL AMMAL

JUDGEMENT

(1.) The first question is whether the respondent is entitled to intervene under Section 47, Civil P.C. Now this is not a case of a person filing a claim petition relying on a paramount right i e., a right inconsistent with the right of the mortgagor. The respondent recognized the right of the mortgagor, in 1917 when he executed his mortgage but says that that right has since been purchased by herself in January 1925 and, therefore, the mortgagor has nothing to be sold by the mortgagee. In so contending she comes in as a representative of the mortgagor. The objection is to the execution of the mortgage decree by sale of the properties and therefore the question relates to the execution of the decree. Thus Section 47 applies and the relative rights of the parties can be determined in the proceedings.

(2.) Coming to the merits: there are two applications of lis pendens in this case. (1) The mortgage of 1917 was made while the decree obtained by the respondent is pending satisfaction and has not been fully worked out. Therefore, that mortgage cannot affect the rights of the respondent under her maintenance decree. (2) If there had been no second suit, i. e., the suit of the mortgagee (O.S. 116 of 24) the matter is simple. The execution proceedings taken out by the respondent are valid and binding on the appellant who did not care to intervene as an assignee of the judgment-debtor and he would have lost all rights. But we have the second suit (O.S. 116 of 1924) and during, the pendency of the decree, i.e., after the. decree was passed, and while it was unsatisfied, the. sale in execution of the first decree extinguishing the mortgagor's rights took place and the appellant contends that this execution purchase is affected by the doctrine of lis pendens and cannot affect his own right to sell the mortgagor's interest (subject to the respondent's rights of maintenance). In reply to this contention the respondent's vakil, Mr. S. Panchapagesa Sastry, relies on the decision in Venkatarama Ayyar V/s. Rangian Chetty A.I.R. 1924 Mad. 449 (F.B.). As we interpret-that decision, it is not a general decision that there cannot be a second application of lis pendens somewhat modifying the effects of the first application of the doctrine of lis pendens, but only a decision on the particular facts of the case.

(3.) The two rival parties were parties to the second suit, (O.S. 1 of 1889) and our construction of the decree in it was that the first suit can be executed without any lis pendens due to the second suit. If the decree-holder in the second suit seeks to redeem the first decree-holder, she cannot do so in O.S. 1 of 1889 or not at all if the decree was not in proper form. But here the facts are different. Up to this stage, the parties have not. met face to face. If we can give effect to the second lis pendens, we ought to do so and safeguard the mortgagee's rights,, provided we do not affect the respondent's right of obtaining her maintenance by execution of the decree. Now it is clear-that a sale of the property in execution of the second decree subject to the rights of the respondent is feasible and does not affect the respondent's rights. Only if such a method is impossible, i. e., only if it can be said that giving effect to the second lis pendens destroys altogether the benefit of the first lis pendens that. one can hold that the second lis pendens cannot be recognized. This is not such a case.