1. The plaint house belonged to one Sitabai, who mort gaged it to respondents in April, 1891. The respondents on 31st May, 1898, obtained, in Suit No. 612 of 1897, a decree against their mortgagor Sitabai for sale of the mortgaged house, and at the Court-sale held in execution of the said decree they purchased the right, title and interest of Sitabai in the said house.
2. Meanwhile during the pendency of the respondent's mortgage suit No. 612 of 1897 against Sitabai, the appellant had at a Court-sale held in execution of a money decree obtained by a creditor against Sitabai, purchased the right, title and interest of Sitabai in the said house as existing at the date of the attachment of the said house in the creditor's suit in which the money decree was passed.
3. There is no express finding by the lower Courts whether this attachment in the money suit was placed soon after, or just before, the institution of the mortgage suit No. 612, but it is not in dispute that the attachment was long after the house had been mortgaged by Sitabai to the respondents.
4. The respondents and the appellant are thus rival purchasers at different Court-sales of Sitabai's equity of redemption, and this suit No. 714 of 1900 was brought by respondents after an unsuccessfull obstruction, removed in Miscellaneous Application No. 99 of 1900, to recover possession of the plaint house from the appellant who had obtained pos-session.
5. The Court of first instance, applying the doctrine of lis pendens to the rival Court-sales, decided that the title of the respondents is superior to that of the appellant and awarded the respondents' claim for possession. The lower Appellate Court confirmed this decree.
6. At the hearing of this second appeal it was argued for the appellant, first, that the doctrine of lis pendens does not apply to a Court-sale; secondly, that the question whether the plaint house was attached in the money suit before mortgage suit No. 612 of 1897 was instituted is material and should have been decided ; thirdly, that the question whether the mortgage by Sitabai to the respondents was without consideration and, therefore, the mortgage decree collusive and fraudulent, is material in the present suit and should have been decided.
7. Taking these points in order:
In the well-known case of Bellamy v. Sabine (1867) 1 De G. & J. 566 Lord Cranworth said: 'Where a litigation is pending between a plaintiff and a defendant as to the right of a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. A mortgage or sale made before final decree to a person who had no notice of the pending proceedings would always render a new suit necessary, and so interminable litigation might be the consequence.'
8. The doctrine of lis pendens is discussed in the Bombay cases of Balaji v. Khushalji (1874) 11 Bom. H.C.R. 24 and Gulabchand v. Dhondi (1873) 11 Bom. H.C.R. 64 where it is applied to private sales.
9. In Ravji Narayan v. Kishnaji (1874) 11 Bom. H.C.R. 189 where there were rival purchasers at different Court-sales, the doctrine of lis pendens was held clearly applicable. In the latter case Westropp, C.J., said: 'But further, if there had not been any decree in the mortgage suit, the mere fact that that suit, which had been instituted in 1866, was pending in 1868, would have in itself been sufficient to defeat the plaintiff's present suit. His purchase in 1868' (at a Court-sale in execution of a money decree) having been made pendente lite was completely subject to any decree which might be made in the mortgage suit.'
10. In a later Bombay case, Parvati v. Kisansing (1882) 6 Bom. 567 the dispute was between a Court-purchaser Kisansing who, in the execution of a money decree against one Ramapa, had bought a house as the property of Ramapa, and on the other side a decree-holder Parvati who had obtained a decree against Ramapa declaring her right to reside in the house. There had been an attachment placed in the money suit prior to Parvati's suit, but the Court-sale under the money decree was during the pendency of Parvati's suit to declare her right to possession. It was held that what Kisansing bought at the Court-sale under the money decree was the right, title and interest of Ramapa, which being subject to the decree in Parvati's pending suit, the purchase by Kisansing at the Court-sale was likewise subject to the same, and the circumstance that a prior attachment had been placed on the house made no difference. Therefore, Kisansing could not eject Parvati during her lifetime.
11. The last two cases were not followed in Lalu v. Kashihai (1886) 10 Bom. 400 where in the judgment delivered by Birdwood, J., a distinction is sought to be drawn between private sales and Court-sales. The differences therein dwelt upon do not appear to touch the true foundation of the rule of lis pendens as laid down in the leading case of Bellamy v. Sabine (1857) 1 De Gax. & J. 566 or the reasoning contained in the passages quoted therefrom and adopted by Westropp, C.J., in Balaji v. Khushalji (1874) 11 Bom. H.C.E. 24. It is not necessary to pursue this point further, because whatever doubts may have been cast by the judgment of Birdwood and Jardine, JJ., upon the correctness of the view taken in the earlier decisions in Ravji Narayan v. Kishnaji (1874) 11 Bom. H.C.E. 139 and Parvati v. Kisansing (1882) 6 Bom. 567 already cited, that the rule of lis pendens applies to Court-sales, are fully removed by the decisions of the Privy Council in Radhamadhub Holdar v. Monohur Mukerji (1888) I L. R. 15 97 : 15 Cal. 756 and MotiLal v. Karrabuddin (1897) 25 Cal. 179 as well as by the provisions of Section 52 of the Transfer of Property Act, (IV of 1882), so that it may now be taken as settled law that the rule of lis pendens is applicable to Court-sales.
12. The second contention for the appellant, that his title would be superior to that of the respondents if the plaint house was attached in the money suit against Sitabai prior to the suit or decree on the mortgage (No. 612 of 1897), is disposed of by the remark of their Lordships of the Privy Council in Moti Lal v. Karrabuddin Ibid p. 185.: 'attachment however, only prevents alienations; it doss not confer title.'
13. The respondent's right as a mortgagee existed before the attachment. 'It was, therefore, unaffected by it': see Parvati v. Kisansing (1882) 6 Bom 570 It may here be pointed out that Anund v. Dhonendro (1871) 14 M. I. A. 101 which was a case of a purchase under an attachment upon a decree, has no application to this case, for there the attachment under which the sale took place was anterior to the mortgage upon which the mortgage suit was founded.
14. There remains, lastly, the contention that appellant should have been allowed to prove that the mortgage on which the decree was passed against Sitabai in the lis pendens No. 612 of 1887) was without consideration. This was a plea which, if true in fact, Sitabai could have and ought (see Section 13, Civil Procedure Code) to have been set up in the lis pendens as a ground of defence. The appellant claims through Sitabai and is bound by the decree passed in the mortgage suit No. 612 of 1897 (the lis pendens) against her: see the decisions of the Privy Council in Radhamadhub v. Monohur (1888) L.R. 15 97 and Moti Lal v. Karrabuddin (1897) 25 Cal. 179 already cited, and appellant Bought the plaint house subject to such decree as might be passed in the lis pendens. The contention now set up is, therefore, barred as res judicata see Section 13, Civil Procedure Code, and Chenvirappa v. Puttappa (1887) 11 Bom. 708 and it is not open to the appellant to raise it in this suit.
18. For the above reasons the decree of the lower Appellate Court is confirmed with costs on the appellant.