1. This appeal arises out of a claim in execution proceedings. The claimant is the appellant.
2. I will shortly state the facts which lead up to the question that I have to decide. There was an agreement, on June 4, 1922, between the claimant and the judgment-debtor. By it the judgment debtor agreed to execute a mortgage in favour of the claimant for Rs. 700. Rs. 500 out of this amount had already been paid. He was to pay an additional Rs. 200. No such mortgage was executed. The claimant then brought a suit, about three years after his agreement; and, on February 26, 1925, obtained a decree for specific performance of his agreement.
3. Nearly two years after the claimant's decree, i.e., on December 10, 1926, the defendant (respondent) also obtained a decree against the judgment debtor. The defendant's decreewas a money decree, He was as prompt to take steps in execution, as the claimant was dilatory. On December 23, 19 26, the defendant attached, in execution of his decree, the property, which forms the subject of the suit, and in regard to which, nearly three years earlier, the claimant had obtained his unexecuted decree (for specific performance of an agreement to mortgage).
4. On January 17, 1927, the claimant filed an objection to the defendant's attachment. On March 17, 1927, he made an application for execution of his own decree : the application in execution was that a mortgage be executed in his favour by the judgment debtor. The defendant failed to do so; and, on June 27, 1927, the Court, at the instance of the claimant, executed a mortgage deed, under Order XXI, Rule 34,
5. The competition, consequently, arises between the plaintiff' (appellant) and defendant (respondent) basing their rights respectively on,-
(1) the plaintiff's suit instituted in 1923; on February 26, 1925, decree therein ; January 17, 1927, objection to defendant's attachment ; March 17, 1927, plaintiff's application for execution of his decree for specific performance of the agreement to mortgage ; June 27, 1927, mortgage executed by Court under Order XXI, Rule 34.
(2) defendant's money decree dated December 10, 1926 ; property attached in execution on December 23, 1926.
6. It will be noticed that there were two parallel proceedings going on, by the claimant and by the defendant,-viz., the appellant and the respondent respectively. These parallel proceedings invite a discussion of Section 52 of the Transfer of Property Act, 1882, and of the doctrine of lis pendens. Both parties relied on that section, Each claimed to have won its favours. Each claimed that having won its favours, he was entitled to the crown of victory.
7. It will clear the situation, therefore, if I deal first with that section, I have to deal with the section as it stood before the amendments of 1929. It providesthat-
During the active prosecution, in any Court having authority in British India, 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.
8. From the section it is seen that the doctrine of lis pendens comes into operation-transfers of or dealings with immoveable property are prohibited-when the following conditions are satisfied : when,-
(1) there is a contentious suit or proceeding in which any right to immoveable property is directly and specifically in question;
(2) there is an active prosecution of such suit or proceeding;
(3) the transfer or dealing is by any party to the suit or proceeding ;
(4) the transfer or dealing affects the rights of any other party to the suit or proceeding under any decree or order which may be made therein.
9. The exception provides that there may he valid transfers or dealings affecting the property with the authority of the Court, and on terms imposed by the Court.
10. Section 52 can, therefore, be relied upon (if at all) only by the claimant (the present appellant); because it was only in his suit that the property in question was the subject matter of the suit. The suit of the respondent was for a money decree : it was not 'a contentious suit or proceeding in which any right to immoveable property was directly and specifically in question' : no reliance can be placed on the section with reference to the respondent's suit: the section cannot help the respondent. This consideration is enough to show that whatever hopes may have been fanned in the breast of the respondent by the allurements of Section 52, they are doomed to disappointment.
11. With reference to the claimant, it was argued that if no proceedings could have been taken pending his suit, so as to affect the rights under the decree or order which may be made in his suit, a fortiori, where he has already obtained the decree, his decree cannot be affected by any proceedings by the parties to the suit. (I may say parenthetically, that Section 52 speaks of a 'dealing or transfer by a party:' it does not speak of proceedings.)
12. The doctrine of lis pendens is, however, laid down in a statute, and it must be given effect to in accordance with the terms of Section 52. The general rule is, that the doctrine oflis pendens does not apply when the decree has already been passed, This is laid down in Bhoje v. Gangabai : (1913)15BOMLR809 . Nevertheless, as was pointed out in that case, there may, in certain circumstances, be an extension of the period, during which the doctrine prevails. Two exceptions are mentioned : where there is a mortgage suit, the proceedings in giving effect to the mortgage decree may be taken as a continuation of the proceedings; and, secondly, execution proceedings have also been considered to be a continuation of the proceedings during which the doctrine prevails.
13. But I accept the argument on behalf of the respondent that this Question should have been specifically raised on the pleadings by the appellant; and especially because of the fact that there must be an active prosecution of the suit or proceeding unders. 52 : Venkatesh Govind v. Marut I.L.R. (1887) Bom. 217 : 9 Bom. L.R. 530 and Krishnappa v. Shiwappa I.L.R. (1907) Bom. 393. In the case to which I have already referred, Bhoje v. Gangabi, it was held that the doctrine cannot be attracted beyond a reasonable time from after the decree; and, if there is a delay in proceeding to execute the decree for four years, as there was in that case, then, the connecting link between the execution proceedings and the decree may be snapped, and the doctrine cannot then be brought into operation.
14. There is, thus, the question to be decided whether there was an active prosecution of a suit or proceeding. On this there are no materials and no allegations on which a decision may be given in favour of the appellant. This is an additional ground for holding that a 52 cannot be relied upon by the appellant, in any case, at the present stage.
15. It follows, therefore, that the appellant is deserted in his hour of need by Section 52 of the Transfer of Property Act, no less than the respondent was.
16. Turning away, then, from the specious and unfulfilled promises of Section 52, to both the appellant and the respondent, 1 come back to the proceedings that have actually taken place. I think, I must direct my attention to each step as it took place, and to consider how the situation was affected by the events that 1 have already narrated.
17. I agree that the mere passing of the decree in favour of the claimant for specific performance, on February 26, 1925, in the terms in which it was made, did not by itself create a charge on the property. The decree ordered that a certain action should be taken, viz., that the then defendant should enter into a mortgage deed in accordance with his agreement. It did not declare that the property was thenceforth to be subject to a charge in favour of the claimant, though he had prayed for such a declaration.
18. Then came the respondents money decree on December 10, 1926. By that, again, the property, the subject of this suit, was unaffected.
19. Thirdly, on December 23, 1926, the respondent obtained an order of attachment against the property. What does an order of attachment mean My attentionis invited for this purpose to Order XXI, Rule 54, and Section 64 of the Civil Procedure Code,- that ' common drudge 'betwen plaintiff and defendant, between claimant, judgment creditor and judgment-debtor.
20. Under Order XXI, Rule 54, 'where the property is immoveable, the attachment shall be made by an order prohibiting the judgment debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.' Section 64 (which must, if anything, govern and control Rule 54), provides that where an attachment has been made, 'any private transfer or delivery of the property attached, shall be void, as against all claimsenforceable under the attachment.'
21. The claimant (appellant) argues that, in this case,-though a mortgage dead was executed in his favour on June 27, 1927, i.e., on a date subsequent to the attachment by the respondent,-the judgment debtor did nothing that can be considered a disobedience of the said prohibitory order of attachment under Rule 54 prohibiting him from transferring or charging ; nor was there a private transfer or delivery of the property obnoxious to Section 64 ; that what happened was that he (the claimant), who had already obtained a decree of the Court entitling him to have a mortgage on the property, executed that decree, and that the execution of that decree is not repugnant either to Order XXI, Rule 54, or to Section 64.
22. A mortgage obtained and executed by process of the Court, as was done by the claimant, cannot be considered a private transfer. There is a decision governing this point in Qurban Ali v. Ashraf Ali I.L.R. (1882) All. 219 where a sale was executed after attachment in execution of an award decree : and it was held that the sale must prevail. It seems to me that it is good sense to hold so. It is not denied that if other persons had obtained ordinary money decrees, they could have attached the property in execution of their money decree and claimed to share in the sale proceeds of the property, on a footing of equality with the respondent, notwithstanding that their attachment might be of a, later date. The appellants' case is not similar to that of persons who have in their favour merely an agreement to sell, and in whose favour no charge is created by a mere contract for sale: Transfer of Property Act, Section 54 (last paragraph). Nor is this a case arising out of ineffectual methods of obtaining a charge, methods rendered ineffectual either by Section 51 of the same Act, or by one of the allied causes referred to in the other sections in the same Chapter. These circumstances aresufficient to make it unnecessary for me to examine in detail such cases as Bhaskar v. Shankar : AIR1924Bom467 ; Byramji v.Chunilal I.L.R. (1902) Bom. 266 : 5 Bom. L.R. 21 ; Govind v. Parashram I.L.R (1900) Bom. 161 : 2 Bom. L.R. 864Tarak Nath Mukherjee v. Sarat Kumar Mukherjee (1929) 33 C.W.N. 805; Roshan Lal v. Lallu I.L.R. (1922) All. 714; and Krishnaji v. Sangappa 1924 27 Born. L.R. 42 They were all cited to me and commented upon.
23. It would be a great anomaly if a person obtaining a mere money decree could be placed on the same footing as the present respondent; and if there were no means available for attaining a similar footing to one who had obtained a decree which was binding against thisspecific property: but in respect of which an attachment could not, or need not, be made. Such an anomalous position is not brought about by the provisions of the Code.
24. An attachment is not to be made a fetish of. There is some danger of this being done. Under the numerous rules of Order XXI, an attachment does appear as a many-headed hydra. But when the monster is seen steadily and seen as a whole, it is quite amenable to reason and to intelligent parley.
25. An attachment under the Code may take different aspects, in so far as it affects,-(1) the attaching creditor: whose positiondepends upon the nature of his decree; (2) the Court: for whom an attachment is either a preliminary measure for execution, or otherwise an indication as to the step it has to take for issuing a process for the execution of the decree ; (3) the judgment debtor: who thereby has either some specific direction given to him, or has his moveable property seized, orimmoveable property placed under restraint; (4) the person who claims an interest in the property: who may be roused into activity for the protection of his rights, which might otherwise be defeated by process of the Court; or (5) the property attached: whose fortunes may be altered and masters changed : Order XXI, Rule 11 (j)(ii), Rules 12, 13, 17, 24, 30, 81, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, 54, 64.
26. For the present, I may confine myself, fortunately, to the following. Attachment is referred to in rules 11, 30, and 31, as one of the modes in which the assistance of the Court may be required in an application for the execution of a decree An application for attachment may, by reason of this, be tantamount to an application for the execution of the decree: or it may be one of the preliminary measures required for issuing the process of execution of the decree : Rule 24. This may seem obvious. I refer to it, however, for emphasizing that while in most cases an attachment has to be applied for as a preliminary measure for the execution of the decree,there are other cases in which such an application is not necessary,-is, in fact, out of the question. The claimant's decree was obviously of that nature. He need not -could not-have applied for attachment. This has to be borne in mind when the claimant's efforts to get the fruits of his decree are brought into conflict or competition with the respondent's efforts to execute his own decree.
27. The respondent's contention, therefore, that he has an attachment, that he must stand on a vantage ground as against the appellant, that his attachment must paralyze the claimant, can be met by the claimant answering: 'True, I have no attachment : that is because my decree is such, that an attachment is not a preliminary measure required for its execution. I can attain to the execution of my decree without an attachment: you need an attachment: 1 do not: to that extent it is I who have the advantage over you. You, having only a money decree, must, in your application for execution of the decree, specify, as the mode in which you desire the assistance of the Court, that the property be attached, so that you may proceed with the execution (Order XXI, Rule 11). I am under no such necessity. I have proceeded, as I was entitled, and, indeed, as it is prescribed that I must proceed, by stating under Rule 11, Sub-rule (2), Clause (j), Sub-clause (v), that the assistance I required was under Rule 84, viz., that the execution of the document, to which I was entitled, should be effected as provided in Sub-rule (4) of Rule 34. I have done so, and I have already attained the execution of my decree ; whereas you, at the most, have made an application for the execution of your money decree, and have taken the preliminary measure required for issuing the process of execution. In any case, the weapon with which you wish to destroy the effect of what 1 have done through the assistance of the Court is powerless against me: the decree that I have already executed cannot be nullified by the preliminary steps needed for the execution of your decree.'
28. This detailed examination of the rules brings me to the same result as I had arrived at on an examination of Section 64 and Rule 54. It makes that obvious which was clear enough before : (1) that the execution of the claimant's decree has not contravened Section 64; the mortgage in his favour is not a private transfer, and, therefore, not void; (2) that Rule 54 has not been contravened: if the judgment debtor had acted upon the decree and executed the document, it would have been in accordance with a decree of the Court of a prior date, which could not be set aside by a prohibitory order of a later date under rub 54. Principle and authority are both in favour of the claimant.
29. The decree, therefore, of the lower Courts will be set aside, and it will be declared that the appellant has a charge on the proper' by to the extent claimed. In accordance with my decision if the claimant had paid Rs. 200 into the Court and claimed a charge for the full mortgage amount of Rs. 700, he would have been entitled to do so. But, for some reason, he claimed a charge for only Rs. 500, and I cannot give him a decree for an amount in excess of his claim.
30. The question was somewhat complicated. There was, moreover, a great deal of delay on the part of the claimant. The delay may be explainable. But no proper explanation has come forth. It seems to me that, in the circumstances, the most equitable order will be that the respondent should bear his own costs throughout. As far as these proceedings are concerned, I make no order that the claimant should have costs as against the respondent. If the claimant, apart from my decision, is entitled to add the costs of these proceedings as against the respondent, that will be independent of my present judgment.