SUBBA REDDI Vs. VEERARAGHAVA REDDI

JUDGEMENT

(1.) The material facts, as they came before this Court at the hearing and as we accept them, are that plaintiff sued first defendant and others on a mortgage, and having failed in the Court of first instance appealed in 1910. Pending disposal of the appeal, two mortgages on the property in suit were given by first defendant to fourth respondent, the present appellant in June and November 1914. Meanwhile, negotiations for a compromise had gone on between first defendant and plaintiff; but it is sufficient, without reference to the exact stage they had reached when the mortgages were given, to say that they resulted in a compromise on 22nd December 1914, which was reported to the Court on 16th September 1915, and which awarded to plaintiff as against first defendant the full relief asked for, Fourth respondent had, however, in consequence of his acquisition of an interest in the suit properties, been made a party to the appeal on 11th February 1915. The question we have to decide is whether be is concluded by first defendant s action or is entitled to contest the appeal on its merits.

(2.) There are no English or Indian decisions, which can be applied to these facts directly, for in Annamalai Chetty v. Malayandi Appaya Naik (1906) I.L.R., 29 Mad., 426 (F.B.), although a Full Bench of this Court held that the doctrine of lis pendens was not the less applicable, because the litigation ended, as it must do here between plaintiff and first defendant, in a compromise, the present case differs, because in it the alienee has been made a party, whilst litigation is still pending; and Manpal v. Sahib Ram (1905) I.L.R., 27 All., 544 (F.B.) was decided in favour of the alienee pendente lite on the ground that he was impleaded at the plaintiff s instance and an issue was raised between them at the trial, where as here the joinder of fourth respondent was opposed by plaintiff and there have been no proceedings since it.

(3.) The case it resembles most closely in point is Tarakant Bannerjee v. Puddomoney Dossee (1866) 10 M.I.A., 476 in which it was held that a person, who acquired title pending the litigation and whose application to be impleaded was refused on the objection of a party, was not concluded by the decision reached before he could appeal against that refusal or institute a suit as supplemental to the one in which he sought to intervene. The learned Chief Justice has distinguished the principle then applied by the Judicial Committee on the grounds that the alienee claimed not, as fourth respondent here has done, to be added as a party but to be substituted for his alienors, and that Section 52 of the Transfer of Property Act had not then been enacted. But with all respect although fourth respondent no doubt in terms applied to be added as a party, his application was in substance to be substituted as one for first defendant in respect of the portion of the latter s interest, which had devolved upon him; and as regards Section 52 the decision of the Judicial Committee is in point, not with direct reference to the general doctrine of lis pendens enunciated in it but as indicating the effect on the application of that doctrine, which an order such as fourth respondent has obtained in the present case and such as would have been passed in England even before the English Order XVII, Rule 3, was enacted would have had. It is on the meaning and legal consequences of such an order that our decision must depend.