1. This appeal, which is preferred by the plaintiff in the original suit, arises in the following circumstances :-
In 1902 the 1st defendant Gangabai kom Vithal obtained V decree for her maintenance against Ramchandra, Vinayak and others. The plaintiff is a purchaser, from some of these judgment-debtors, of two of the plots mentioned in the maintenance suit, but in this appeal we are concerned only with one of these two plots, namely, Survey No. 108 Falni Nos. 1t 2 and 4 and Plot Nos. 1, 2 and 3. This purchase was made by the plaintiff in 1906. Prior to then no attachment or other proceeding had been taken out by the first defendant under her decree of 1902. In 1907, however, she applied for execution of her decree for maintenance. In 1910 this particular plot along with others was attached and sold, and was purchased by the third defendant.
2. The suit was brought by the plaintiff for a declaration that the sale to him in 1906 was binding on the 1st and other defendants and in order that the Court should set aside the auction-sale of 1910.
3. In the trial Court the plaintiff succeeded. He was, however, defeated in the lower appellate Court, the learned Judge being of opinion that the doctrine of Us pendens was fatal to his suit.
4. The first point that we have to decide is whether this view of the learned Judge of the Court below was right. It appears to me that, in the circumstances of this case, the doctrine of list pendens cannot be applied. The decree which was obtained by the first defendant is Ex. 65 and the purport of it was to place a charge in her favour upon the family property. It was declared that her charge was for arrears amounting to Rs. 61 and for future maintenance.
5. As I have noted, the decree was obtained in 1902. Plaintiffs purchase was in 1906, and between these dates no execution or other proceeding in the litigation was at any time pending. It was not till a year after the plaintiff's purchase that the decree-holder applied for execution of her decree.
6. The learned Judge below realized these facts which he has correctly stated. He says, however, that proceedings in execution must be regarded as a continuation of the suit, and the purchase during their pendency is consequently - void, and he refers to the cases of Shivjiram v. Waman I.L.R. (1897) Bom. 939 and Makanji v. Babaji (1904) 6 Bom. L.R. 303. It seems to me, however, that if these cases be accurately apprehended, they will be seen to be hostile rather than favourable to the view which the learned Judge took.
7. In the first place, however, I must note that the phrase used by the learned Judge as to this being a purchase ' during the pendency of the execution proceedings ' is incorrect. The purchase, as the Judge himself observes in another part, was made prior to the institution of execution proceedings.
8. The doctrine of list pendens is for us embodied in Section 52 of the Transfer of Property Act which, so far as concerns the present appeal, limits the applicability of the doctrine to purchases made ' during the active prosecution in any Court of a contentious suit or proceeding.' If these words are not to be strained, but are to carry only their natural and ordinary meaning, it seems to me clear that they cannot cover such a case as this. The decree had been passed four years earlier. The execution proceedings were not yet taken, and I think it is not possible with any propriety of language to say in these circumstances that this purchase by the plaintiff was made during the active prosecution of a contentious suit or proceeding.
9. Mr. A. G. Desai for the respondents endeavoured to assimilate the facts here with those with-which Sir Arthur Strachey C. J. was dealing in Chunni Lal v. Abdul Ali Khan I.L.R. (1901) All. 331. There, however, the Chief Justice was speaking expressly of mortgage decrees only, and while it is clear that in mortgage suits the Us is not terminated by the decree nisi, but only by the final decree, I do not think that any such distinction can properly be made in regard to the decree which we have before us. In my opinion this decree awarding maintenance and laying a charge for it upon a particular property was a final decree and, as such, it ended the litis contestatio. If that is so, then I think under the rulings by which we are bound, the plaintiff is entitled to succeed, and I rely in particular upon the same cases which the learned Judge below cited in support of his decision. Sir Charles Farran's judgment in Shivjiram v. Waman I.L.R. (1897) Bom. 939 is, I think, of special importance. The facts there were that the impugned sale was made to the defendants while the plaintiff's execution proceedings were actually pending. It was held that the sale was therefore to be considered as made pendente lite. Even this conclusion was not arrived at without some little difficulty; for the Chief Justice begins by saying that ' the general rule of law is that the Us pendens, except in administration suits and suits for an account in which the decree is the inception of subsequent proceedings, ends with the decree. This,' as his Lordship says, ' was laid down by Lord Hardwicke in Worsley v. Earl of Scarborough (1746) 3 Atk. 392 and was recognized by Sir Charles Sargent C. J. in the above cited case of Venkatesh Govind v. Maruti I.L.R. (1886) Bom. 217. In Kinsman v. Kinsman (1830) 1 R. & M. 617 Lord Lyndhurst says: 'After the decree, and before execution, [ which is precisely the case before us now in this present appeal ] it was not pretended that Its pendens could any longer exist'. ' The question, however, that Sir Charles Farran and Mr. Justice Candy had to consider was whether execution proceedings, which had been instituted, can be said to revive or give continuance to the Us which otherwise had terminated. In view of the numerous Calcutta decisions which had been approved in principle by the Judicial Committee, though they were hardly consistent with the observations of Sir Charles Sargent in Venkatesh Govind v. Maruti I.L.R. (1886) Bom. 217, the learned Judges came to the conclusion that execution proceedings subsequently filed did operate to revive the Us pendens. That, however, as I have said, was a case where the purchase was made during the actual pendency of the execution proceedings and Makanji v. Babaji (1904) 6 Bom. L.R. 303 was another case of precisely the same character. There is no case which has gone the length to which respondents are forced to ask us to go here. The case which nearest approaches the needs of the respondents is that of Rachappa Nilkanthappa v. Mangesh Mahadaji (1898) P.J. 386. That, however, as I regard it and as I understand the judgment of Mr. Justice Ranade, was a case decided rather upon its own peculiar facts than upon any hard and fast point of principle. The peculiar facts were that although the sale had been rapidly interposed between the-decree and the execution proceedings, yet no appreciable delay had occurred on the part of the decree-holder, and while the sale took place only a few days before the execution, the darkhast had been given only a few days after the decree had been passed. The view of the Court, therefore, appeared to be that though the purchaser had been abnormally active, his opponent had been as active as the law required. Moreover, it is to be observed that in that case the Court was dealing with a mortgage decree and that in such a suit the Us would not terminate until there had been a final decree.
10. As to Dose Thimmanna Bhutta v. Krishna Tantri I.L.R. (1906) Mad. 508, to which reference was also made, it appears that there was no question but that the alienation was effected during the pendency of the actual suit. On the whole, therefore, no case, as I have said, goes so far as to support the judgment now under appeal, and from the language used by Sir Charles Farran, I am led to suppose that the cases have already been taken as far as he would have approved.
11. For these reasons and because of the words of Section 52 of the Transfer of Property Act, I am of opinion that the doctrine of Its pendens cannot be made to apply to such facts as those in this case. I ground my decision on the opinion that this purchase was not made during the active prosecution of any contentious suit or proceeding.
12. Mr. Desai next contends that his client, respondent No. 2, is a Court purchaser and consequently his title relates back to the date of the mortgage and is unaffected by any incumbrances. He refers to the authorities of Sakharam v. Sadashiv (1878) P. J. 147, Kasan Laldas v. Pranjivan Asharam (1870) 7 B.H.C.R.146 and Mohan Manor v. Togu Uka I.L.R. (1885) Bom. 224. These decisions appear to me to establish the propositions for which Mr. Desai contends. I am also of opinion under the authority of Kuloda Prosad Chatterjee v. Jageshar Koer I.L.R. (1899) Cal. 194 that the plaintiff's purchase was subject to the charge in favour of the first defendant irrespective of the question whether the plaintiff had or had not notice of that charge.
13. On these grounds I hold that the decree under appeal ought to be set aside and in its place there should be made a decree allowing the plaintiff to recover this property in suit from the third defendant on condition that the plaintiff pays to the third defendant the sum for which the property was put to sale. If there is any question as to this amount, or if, as we understand, this property in suit was sold together with another property as one single parcel, then the proportionate sum to be ascribed to this plot in suit must be ascertained by the lower Court in execution.
14. The appeal being thus allowed, the appellant must have his costs throughout.
15. I concur. With reference to the question of lis pendens, I desire to add that having regard to the facts in this case, which have been stated by my learned colleague in his judgment, I am of opinion that there was no active prosecution of any contentious suit or proceeding from 1902 to 1907 (1. e., from the date of the decree to the date of the execution proceedings), within the meaning of Section 52 of the Transfer of Property Act. I think that the decree for maintenance, when it was passed, really put an end to the litigation. The case of Venkatesh Govind v. Maruti I.L.R. (1887) Bom. 217 is clearly an authority for the view that the litigation was terminated by the decree, which only remained to be executed if necessary against the properties mentioned in the decree. Though it was not a case under the Transfer of Property Act, I think the ratio decidendi of that case applies to the present case. The decree creating a charge on property in the present case is substantially similar to the decree in Venkatesh's case, in which the decretal amount was ordered to be paid ' on the liability of the land in the plaint mentioned'. The observations of Sir Charles Farran C. J., in Shivjiram v. Waman I.L.R.(1897) Bom. 939, as I read them, do not in any way conflict with the reasoning upon which the conclusion in Venkatesh's case is based. The point which arose for decision in Shivjiram's case really did not arise in the case in Venkatesh's case, as in the latter case no execution proceedings were taken. As regards the general statement about the doctrine of Us pendens, the observations in both the cases are in harmony, and, in my opinion, support the appellant's contention.
16. As regards the case of Rachappa Nilhanthappa, v. Mangesh Makadaji (1898) P.J. 386 which is relied upon on behalf of the respondents, having regard to the facts in that case as stated in the judgments, it is clear that there was no appreciable lapse of time after the decree and before the institution of execution proceedings, and the case clearly turns upon the special facts of that case. Mr. Justice Parsons observed that the decree itself operated as an attachment of the property and nothing remained but to ask the Court to sell it. Mr. Justice Ranade said as follows :- 'It is clear that if lis pendens was revived by reason of this prompt execution, the appellant's deed of purchase must be considered as though it had been passed after the suit was instituted and before it was decided.' I am unable to treat this decision as an authority for the broad proposition, which the respondent has contended for in this case, that whatever may be the interval between the date of the decree and the institution of the execution proceedings, the moment the execution proceedings are taken, the lis must be deemed to be pending during that interval, and all dispositions made during the interval must be subjected to this doctrine of lis pendens.
17. As regards the second point I think that the plaintiff must be held to have purchased the property subject to the charge created by the decree in favour of defendant No. 1 : see Kuloda Prosad Chatterjee v. Jageshar Koer I.L.R. (1899) Cal. 194. The defendant No. 3 has become entitled to that charge as an auction-purchaser, and before the plaintiff could recover possession of the property, he is bound to satisfy the charge thereon.