1. One Chhatarpat Singh was the owner of a 6 1/4 biswa share of zamindari. He had two sons, Kanhai and Gokul, who inherited his property in equal shares. Kanhai's sons were Makhan and Gandharp. Gokul had a son Badri who inherited his share of the property. Badri having died without issue, his half share passed to his mother, Musammat Dhan Kunwar.
2. The following mortgages of the property of Chhatarpat Singh were made by the different members of his family:
(1) On 1st March 1889, Dhan Kunwar and Gandharp made a simple mortgage of 6 1/4 biswas in favour of Jagannath, father of the appellant, Parsotam Narain.
(2) On 8th July 1889, the same persons (Dhan Kunwar and Gandharp) made a mortgage by way of conditional sale of 4 biswas 13 biswansis in favour of one Nand Ram.
(3) On 8th August 1890, Dhan Kunwar and Gandharp made a simple mortgage of 2 biswas to Ganga Ram, who, on 10th June 1902, sold his rights as mortgagee to Parsotam Narain, appellant.
(4) On 16th September 1891, Gandharp and Makhan made a usufructuary mortgage of 6 1/4 biswas to one Jagannath, who was a different person from the mortgagee under the first mortgage.
3. Parsotam Narain brought a suit under the first mortgage of the 1st of March 1889, against the mortgagors, Gandharp and Dhan Kunwar. The latter having died during the pendency of the suit, Makhan was made a party as her legal representative. The subsequent mortgagees were also joined as parties. A decree for sale was passed on 11th May 1896 against all the defendants. Execution of the decree was taken out from time to time, but the mortgaged property was not sold.
4. Upon the second mortgage of 8th July 1889, a suit for foreclosure was brought by the heirs of Nand Ram against Gandharp and Makhan and the prior and subsequent mortgagees; and although the plaintiffs to that suit were mortgagees of 4 biswas and 13 biswansis, they included in their claim the whole of the 6 1/4 biswas on the ground that they had offered to redeem the prior mortgage. A decree was made in their favour on the 20th of December 1901, for foreclosure in respect of the whole of the 6 1/4 biswas. This decree was assigned to Parsotam Narain, appellant, on 20th June 1902.
5. On 4th July 1902, Makhan sold his one-fourth share in the property amounting to 1 biswa and odd to the plaintiff, Chheda Lal.
6. On 9th July 1902, Parsotam Narain made an application for an order absolute for foreclosure under Section 87 of the Transfer of Property Act, but did not make Chheda Lal a party. It does not appear that he had notice of the purchase by Chheda Lal. Makhan, however, was impleaded in the proceedings. On 6th September 1902, an order absolute for foreclosure was made in respect of 6 1/4 biswas, and on the strength of this order possession was taken and mutation of names was obtained by Parsotam Narain.
7. Thereupon the present suit was brought by Chheda Lal, the purchaser from Makhan, for possession of the share purchased by him. He offered to redeem the conditional sale in favour of Nand Ram, as also the first and third mortgages. The Court of first instance made a decree in his favour conditional upon his redeeming the first mortgage, and this decree has been affirmed by the lower appellate Court. Hence this appeal.
8. It is contended on behalf of the appellant that as the decree for foreclosure, passed on the 20th December 1901, related to the whole of the 6 1/4 biswas and has been made absolute, the property has vested absolutely in the appellant Parsotam Narain and the plaintiff has acquired no title to any part of it under his purchase. On behalf of the respondent it is urged that as the plaintiff had purchased Makhan's share before the application for an order absolute for foreclosure was made, that order is not binding on the plaintiff, and he has still the right to redeem the mortgage upon which the decree for foreclosure was passed. In answer to this contention the learned vakil for the appellant urges that the decree and the order absolute for foreclosure are binding on the plaintiff under the rule of lis pendens.
9. There can be no doubt that if the plaintiff is bound by the order absolute for foreclosure he has acquired no title under his purchase and has no right to maintain the suit That the decree nisi for foreclosure, passed on the 20th December 1901, is binding on him can admit of no doubt, as his purchase was of a date subsequent to the date of the decree and the decree was obtained against his vendor. The question to be determined therefore, is whether the order absolute for foreclosure, passed against his vendor is equally binding on him. It is conceded that it would be binding if the purchase was made pendente lite. This leads to the question whether the lis terminated with the decree under Section 86 of the Transfer of Property Act or continued till the final order was made under Section 87.
10. By Section 52 of the Transfer of Property Act which formulates well known rules on the subject, lis pendens continues during the active prosecution of a contentious suit or proceeding; so that it terminates upon the final decision of the suit or proceeding. 'But the lis pendens is not terminated where the decree does not put an end to the suit.' (Sugden on Vendors and Purchasers, p. 760.) In Fisher on Mortgages it is stated on the authority of Higgins v. Shaw Dr, and War., 356 that' a decree which is not final, as a decree to account, which puts no end to the matters in question, binds as lis pendens.' (4th Edn., pp. 548, 549.) The same appears to be the law in America. Bennet in his work on Lis Pendens, observes that the decree or judgment to be final must be of 'such a character as puts a conclusion to the matters in question in the suit. Interlocutory decrees or orders cannot have that effect, although they may purport to settle the rights of the parties. The Court, however, still would have power to modify or vacate them, and for all purposes-of notice or binding force, lis pendens will continue notwithstanding such orders or decrees.' (See Hukum Chand on the law of Res Judicata, p. 698.) It is thus clear that lis pendens continues until a final decree is passed in the suit. The decree under Section 86 of the Transfer of Property Act in a suit for foreclosure is a decree nisi only and does not finally terminate the litigation. The right to redeem still subsists, and it is only when an order is made under Section 87 that 'the defendant and all persons, claiming through or under him' are absolutely debarred of all right to redeem and the debt secured by the mortgage is deemed to be discharged. Until, therefore, an order absolute is passed under this section, it cannot, as it seems to me, be said that the litigation has terminated and that a final decree in the suit has been passed. This appears to be the law in America under 'which lis pendens continues until possession is delivered under the decree for foreclosure. It is stated in Bennet on Lis Pendens (p. 120) that' although it is true in a general sense, that lis pendens ceases with the rendition of judgment or entry of final decree, yet in the case of a foreclosure of a mortgage on real estate, it cannot be said that lis pendens ceases upon the making of the master's deed after sale under the decree, Where something remains to be done by the Court in the execution of its judgments and decrees, other than can be done without order of Court by the merely ministerial officers of the Court, lis pendens continues until this decree is executed. So in the case of the foreclosure of a mortgage it continues until the purchaser has been put into possession of the property '. (Hukum Chund, p. 697, and Ghose on Mortgages, 3rd Edn., p. 792.) To the same effect is the following observation in Van Fleet's Former Adjudication (Vol. II, p. 1098): 'In a foreclosure suit in equity the Court is not functus officio until the decree is executed by delivery of possession, and the lis pendens does not cease until that is done.' In the analogous case of a decree under Section 88 of the Transfer of Property Act, it was held by this Court in Chunni Lal v. Abdul Ali Khan (1901) 1. L.R., 23 All., 331 that such a decree being only a decree nisi and not a final decree, the suit in which it is passed does not terminate until an order absolute is made under Section 89 and that a purchase made before the passing of an order absolute is a purchase pendente lite. The Bombay High Court held in Shivjiram Sahebram Marwadi v. Waman Narayan Joshi (1897) I.R., 22 Bom., 939 that execution proceedings 'give continuance to the lis pendens.' Upon these authorities it must be held that the purchase made by the plaintiff in this case was a purchase pendente lite and he is bound by the order absolute for foreclosure made on 6th September 1902. It is urged on his behalf that as his purchase was made during the interval between the date of the decree under Section 86 and that of the presentation of the application for an order absolute for foreclosure, it was made when no proceedings were pending, and therefore the rule of lis pendens does not apply to his case. The answer to this contention is that, although proceedings for an order absolute had not actually been instituted when the plaintiff made his purchase, yet as the suit did not terminate with the decree under Section 86 but must be deemed to have continued till the making of the order absolute, the sale took place pendente lite. It is next argued that as the plaintiff by his purchase acquired the right of redemption and as he was not made a party to the proceedings relating to the order absolute, he was not foreclosed of his right of redemption, and it would be a great hardship to him were he to be deprived of his right of redemption in consequence of an order made in proceedings to which he was not a party. There is no doubt much force in this contention, but the principle upon which the rule of lis pendens is founded as laid down in Bellamy v. Sabine (1857) 1 Dc. G, and J., 556 is that there would be no certainty as to the termination of litigation if alienations pending a suit were allowed to prevail. As for hardship, it was the plaintiff's own fault that immediately after his purchase he did not pay off the amount of the mortgage, of which he undoubtedly had notice. In the present instance the six months allowed by the decree for payment of the mortgage money had expired long before the purchase of the property by the plaintiff. So that there can be no question of hardship in the case of the plaintiff. In Qadir Bakhsh v. Jwala Prasad S.A. No. 294 of 1902, decided on the 20th April 1904 to which the learned vakil for the respondent has referred, the question of lis pendens was not raised or considered.
11. As for the above reasons the plaintiff must be held to have purchased the property in suit pendente lite, he is bound by the order absolute for foreclosure passed on the 6th of September 1902, and as that order vested the property absolutely in the appellant, the plaintiff has acquired no right to it and cannot maintain the suit. I accordingly allow the appeal, discharge the decrees of both the Courts below and dismiss the suit of the plaintiff respondent with costs in all Courts.