Charles Arnold White, Kt., C.J.
1. In this reference the question for determination is whether the doctrine of lis pendens, as embodied in Section 52 of the Transfer of Property Act, applies when the suit during the pendency of which the transfer takes place is subsequently compromised and a decree is given in pursuance of the compromise; or, in other words, was the case of Vythinadayyan v. Subramanya I.L.R(1889) Mad. 439 rightly decided?
2. Section 52 of the Transfer of Property Act is in these terms:
During the active prosecution in any Court having authority in British India Chief Justice, or established beyond the limits of British India by the Governor-General in Council 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.
3. I will deal first with the question of the construction of the section apart from the authorities.
4. In support of the view that the section did not apply in the case of a compromise decree, it was argued that the word 'contentious' was introduced for the express purpose of excluding the operation of the doctrine of lis pendens when the decree was a decree by consent. I find myself quite unable to accept this view. A suit is either contentious or non-contentious, and the fact that there is a decree by consent cannot by a sort of relation back alter the nature and character of the suit. The word 'contentious' as distinguished from voluntary, or common form, is used to describe the jurisdiction of the Courts whose powers were vested in the Court of Probate by the Probate Act, 1857. The expression 'voluntary and contentious jurisdiction and authority' occurs in Sections 3 and 4 of that Act, and the practice of the Probate Division is governed by rules which distinguish between contentious and non-contentious business. I think the word contentious is used in Section 52 of the Transfer of Property Act in the sense in which it is used in the Probate Act and rules.
5. If the nature of the suit or proceeding is such that no contest is involved-as in probate common form business-the suit or proceeding is non-contentious. If a contest is involved it is contentious. I am quite prepared to accept the definition adopted by the Calcutta High Court in Upendra Chandra Singh v. Mohri Lal Marwari I.L.R(1904) Cal. 745. With reference to the authorities bearing upon the meaning of the words 'contentious suits,' their Lordships say (p. 752) 'what we think may be gathered from these cases, how-ever, is that to constitute a suit' contentious,' it must be a suit, which upon the face of the proceedings would appear to involve some contention as to the right of one or other of the parties, in the immoveable property, which is claimed in the suit, and whether there is such a contention may be gathered from the plaint itself, or the defence of the defendant, when it is put in.'
6. This definition is in accordance with the definition of 'contention' contained in the explanation to Section 253-A of the Succession Act-'By 'contention' is understood the appearance of any one in person, or by his recognized 'agent, or by a pleader duly appointed to act on his behalf to oppose the proceeding.' It may be said that the very fact that there is a compromise shows that the suit was originally contentious. Otherwise there would be nothing to compromise.
7. With all deference to the learned Judges who decided Vythinadayyan v. Subramanya I.L.R(1889) M. 439, I cannot agree with the view that a Court in giving a decree in pursuance of a compromise performs a ministerial and not a judicial function. A decree is none the less a decree as defined by the Code of Civil Procedure, because it is based on a compromise, and the legal effects of the decree contemplated by Section 375 do not differ from the legal effects of a decree where the suit has been fought out to the end. The fact that a decree is given in accordance with* the terms which' have been come to between the parties does not prevent the decree being the formal expression by the Court of an adjudication on a right claimed or a defence set up within the meaning of the definition. The test is not-has the Court exercised its mind in deciding the terms of the decree? If it were, a decree in pursuance of an award would not be 'a decree'.
8. As regards the English authorities the principle on which the doctrine of lis pendens is based is laid down by Lord Cranworth in Bellamy v. Sabine 2. The Lord Chancellor observes:-(p. 578)
It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the apposite party.
9. Where a litigation is pending between a plaintiff and a defendant as to the right to 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.' Lord Justice Turner in giving judgment in the same case observes: (p. 584). It is, as I think, a doctrine common to the Courts both of Law and of Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo subject again to be defeated by the same course of proceeding.' A general order of Lord Bacon of 1649 which is cited by the Lord Justice (p. 585) is in these terms:
No decree bindeth any that cometh in bona fide by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill nor order, but where he comes in pendente lite, and while the suit is in full prosecution, and without any colour of allowance or privity of the Court, there regularly the decree bindeth.
10. I can find nothing in the judgments in Bellamy v. Sabine 1 De Gex and Jones 566 which is the leading English case upon the subject, which suggests that the doctrine of lis pendens does not operate when the decree of the Court is a decree based upon a compromise.
11. On the other hand our attention was called to the case of Landon v. Morns 2 L.J. Ch. 35, (more fully reported 5 Sim. 247) where it was held that a decree taken pro confesso was binding on a purchaser who had entered into a contract after the filing of the bill. Our attention was also called to an old case reported in 2 Freeman-'Decree by consent, for a lease or other personal estate, shall bind purchasers, otherwise, said the Lord Keeper, you will blow up the Court of Chancery'. See Windham v. Windham 22 Eng. Rep. 1103. This report, however, is too meagre to be of any value. Moreover, it would appear that the decree was in connection with personal estate.
12. With regard to the Indian authorities, in Kailas Chandra Ghose v. Fulchand Jaharri (1871) 8 Bom. L.R. 474, (decided in 1871) there was a consent order and it was held the doctrine did not apply. The order by consent was of a very special character, being an order for the sale of property to provide funds for the payment of costs. Moreover the decision of the Appellate Court, of which Sir Richard Couch was a member, was based not on the ground of the order having been made by consent, but on the ground that the defendant had notice of the plaintiff's claim-See pp. 489 and 490. It does not seem to me easy to reconcile Sir Richard Couch's judgment in this case with the principles of the doctrine of lis pendens as enunciated by Lord Cran-worth. In a case which came before Sir Richard Couch 3 years later, Raj Kishen Mookerjee v. Radha Madhub Holdar (1874) 21 W.R. 349 where it was held that a purchaser under an execution was bound by a lis pendens, this decision was not referred to. In Kishory Mohun Roy v. Mahomed Mujaffer Hoossein (1890) I.L.R. 18 C. 188 there is no doubt an obiter dictum which is in favour of the view which was contended for by Sir Bhashyam Iyengar-viz., that the doctrine did not apply in the case of a compromise decree. In Upendra Chandra Singh v. Mohri Lal Marwari I.L.R(1904) C. 745 the suits which were held to be not contentious within the meaning of Section 52 were undefended suits for moneys due on mortgages by sale of the properties, in which no question as to the right to the properties was involved.
13. I think Section 52 of the Transfer of Property Act should be construed as applying to the case of a compromise decree in the absence, of course, of anything in the nature of fraud or collusion. This seems to be the natural construction of the section and it is in accordance with the principles on which the doctrine of lis pendens is based.
14. With all respect I think the case of Vythinadayyan v. Subramanya I.L.R(1889) M. 439 was wrongly decided, and I am of opinion that the answer to the question referred to us should be that the transfer to the plaintiff was subject to the decree and execution proceedings in O.S. No. 23 of 1897.
Subrahmanya Aiyar, J.
15. I am also of the same opinion. Of course the word 'under any decree or order made therein' in Section 52 of the Transfer of Property Act upon their face lend no support to the argument of Sir V. Bashyam Iyengar on behalf of the appellant, that the fact of the bank's decree having been passed' on a compromise renders it unavailing as against him. But the argument was put thus: the word 'therein' after 'decree or order' in the section refers back to the words 'contentious suit or proceeding' and though in the present instance the suit was contentious up to the time the compromise was entered into, it ceased to be such when that was concluded; consequently the decree in question was not a decree of the description contemplated by the section. The argument of course assumes that the phrase 'contentious suit or proceeding' in the section covers only a suit or proceeding in which the parties are actually disputing and that only so long as the actual contest continues. In my opinion the word 'contentious' is employed in quite a different sense, viz., that in which Blackstone uses it in the passage cited in the recent New English Dictionary by Dr. Murray. That passage runs:-I pass by such ecclesiastical Courts, as have only what is called a voluntary and not a contentious jurisdiction; which are merely concerned in doing or selling what no one opposes, and which keep an open office for that purpose, (as granting dispensations, licenses, faculties and other remnants of the papal extortions) but do not concern themselves with administering redress to any injury (Blackstone's Commentaries, VI, Edn. (1774), Vol, III, p. 66). The contentious jurisdiction here spoken of is obviously that by invoking which a party having a difference with another puts the law in motion as against his adversary, in contradistinction to jurisdiction to be resorted to in matters which ex-hypothesi admit of no opposition. The same ' idea is conveyed in Stroude's Judicial Dictionary when the author in explaining the term 'contentious' observes that contentious business is the opposite of common form business. This interpretation is also in conformity with the opinion of Dr. Ghose who in his learned work on Mortgages points out that the term 'contentious proceeding' in the section has been borrowed from Probate Practice: where of course it merely means a proceeding in which there are adversary parties. (III Edn. p. 794). The unsoundness of the other view will be clearlv seen if the start-ling consequence involved in it is borne in mind, for, according to Sir V. Bhasyam Iyengar, a decree passed ex parte, or on confession, or as the result of the defendant abandoning a defence set up would, equally with a compromise decree, not avail the successful party as against a transferee pendente lite from the defendant. This is virtually to abolish the salutary doctrine of lis pendens completely, inasmuch as a defendant desirous of defeating the plaintiff, however good his title may be, has only to transfer the property in litigation 50 a third party and abstain from doing anything in the suit. The essence of the doctrine of lis pendens undoubtedly is that where a proceeding before a Court exercising contentious jurisdiction is honestly brought to a termination in one of the modes which the law permits to be terminated by and a decision of the Court is obtained, such decision is binding upon all persons who claim title by virtue of a transfer pending the litigation. With reference to this underlying principle there is no conceivable reason for attaching greater efficacy to a decision arrived at after actual contest than to decisions arrived at otherwise.
16. Passing to the authorities, the only decision which conflicts with the view we are now taking is Vyhinathayyan v. Subramaniya I.L.R(1889) M. 439 decided by the late Chief Justice and Parker, J. At page 442 of the report the words 'decision of the Court' are italicised, it being apparently thereby implied that a decree in pursuance of a compromise is not a decision by the Court for the purposes of lis pendens. This, as appears from what follows in the judgment, is obviously due to the effect ascribed by the learned Judges to Jenkins v. Robertson L.R. 1 H.L. Sc. 117 which seems to have been taken as a decision on the general law. That this is not so was pointed out in In re South American and Mexicn Co. (1895) 1 Ch. 37, where it was laid down that a judgment by consent or default is as effective as an estoppel between, the parties as a judgment whereby the Court exercises its mind on a contested case (see at pp. 45, 46). In Kailas Chandra Ghose v. Fulchand Jahatri (1871) 8 Bengal L.R. 174 also cited by the learned Judges, all that was laid down was that there was no authority for the proposition that a transferee pending litigation who does not become a party to the proceeding is bound by any order whatsoever passed therein without reference to what would in the usual course take place having regard to the nature, of the suit, the case set up in the plaint and the relief prayed for. In the course of his judgment Sir Richard Couch expressly abstains from entering into a consideration of the other effects of lis pendens. It is therefore difficult to see how anything in that case supports the view that the determination of the precise dispute in a case, in pursuance of a compromise, is for that reason any the less a decision by the Court. Be this as it may, Kailas Chandra Ghose v. Fulchand Jahafri (1871) 8 Ben.LR 174 does not seem to be altogether reconcileable with the two other decisions of the same High Court to which the attention of Collins, C.J., and Parker, J. was not drawn. They are Naduroenissa Bebee v. Aghur Ali (1867) 7 W.R. 103, an earlier decision and Raj Kishen Mookerji v. Radha Madhab Holdar (1874) 21 W.R. 349 decided after Kailas Chandra Ghose v. Fulchand Jaharri (1874) 21 W.R. 349, and in both, of them compromise decrees were held to bind transferees' pendente lite. The judgment in the second of these cases, where the doctrine of lis pendens was exhaustively examined, was delivered by Sir. Richard Couch himself, and the conclusion arrived at by him received the complete concurrence of the Judicial Committee in Radha Madhub Holdar v. Monohar Mukerjee I.L.R(1888) I.L.R. 15 Cal. (see at p. 761). Nor is it to be supposed, as Sir V. Bhashyan Iyengar suggested, that English reports furnish no instance of a decision not following an actual contest having been held binding on transferees from parties to pending proceedings, Landon v. Morris (V. Simson's Reports in Chancery p. 247, cited for the Bank is one such instance. And Partridge v. Shephard 71 Cal. 470, Turner v. Babb 60 Mo. 342, and Mcllwrath v. Hollander 73 Mo. 105 ;s.c. 39 Am, Rep. 747 are American authorities, in all of which the Courts held that compromise, decrees prevailed as against purchasers; pendente lite. (Amercian Digest, Century Edition, 33, Col. 1443, a, d and e).
17. Clearly, therefore, the, answer to the question proposed must be in the affirmative.
18. I am. also of the same opinion. At the time when the plaintiff obtained his interest in the property the suit (O.S. No. 23 of 1897) was undoubtedly contentions, and was being actively prosecuted. Section 52 of the Transfer of Property Act therefore applies, and in the words of that section the property could not be transferred by any party to the suit (i.e., by the Zemindar then a defendant) so as to affect the rights of any other party thereto (i.e., the Bank then a plaintiff) under any decree which might be made therein, except under the authority of the Court. It is difficult to see how the compromise of the suit between the parties subsequent to the transfer can be held to render the suit non-contentious at the time of the transfer or, indeed, at any time. The very fact of the compromise shows that the suit was contentious. Moreover, if the compromise of a suit were, held to render it noncontentious, it would never be safe for any party to enter into a compromise, since by so doing he would jeopardise the fruits of his decree, which might be made of no effect by a transfer made behind his back by the other party. I can find no reason why the law should be such as to involve consequences so completely at variance with the principles on which the doctrine, of lis pendens is based. I have no doubt that the case of Vythinadayyan v. Subramania