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Kunhi Umah Vs. Amed and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1891)ILR14Mad489
AppellantKunhi Umah
RespondentAmed and anr.
Cases ReferredManual Fruval v. Sanagapalli Latchmidevamma
Excerpt:
- .....a subsequent incumbrancer. it was by the subsequent purchase that such right was created and the purchase was subject to the doctrine of lis pendens. the first defendant ought to have paid the amount under the mortgage decree and prevented the sale in execution in the same way in which the mortgagors might have done. it is no doubt true that the purchaser had reference to the order that the property might be sold subject to the prior mortgage but the order did not create a right to redeem which came into existence only after the purchase. the fact that the mortgagee knew of the order makes no difference, as he only sought to enforce his mortgage which he was legally entitled to do and no notice of the suit was necessary to the first defendant who is sought to be affected by lis.....
Judgment:

1. Both the Courts below are in error in holding that the first defendant's purchase is not governed by the doctrine of lis pendens. It was held in Raj Kishen Mookerjee v. Radha Marthub Holdar 21 W.R. 349 that a purchaser under an execution was bound by lis pendens, and the same opinion was expressed by this Court in Manual Fruval v. Sanagapalli Latchmidevamma 7 M.H.C.R. 104, in which the plaintiff made his purchase at an execution sale held by a District Munsif. The result is that the first defendant must be treated as if he were a party to the plaintiff's suit and bound by the decree and the execution proceeding therein. But it is urged that prior to the date of the plaintiff's suit there was an attachment made by the first defendant, that a claim was preferred by the plaintiff, and that the property under attachment was thereupon ordered to be sold subject to the mortgage. These proceedings created only a power in the judgment-creditor in Original Suit No. 472 of 1879 to bring the mortgagors' equity of redemption to sale, and the judgment-creditor had, as was held by Mr. Justice Wilson in Soobhul Chundcr Paul v. Nitye-Churn Bysack 21 W.R. 349, no right to redeem as a subsequent incumbrancer. It was by the subsequent purchase that such right was created and the purchase was subject to the doctrine of lis pendens. The first defendant ought to have paid the amount under the mortgage decree and prevented the sale in execution in the same way in which the mortgagors might have done. It is no doubt true that the purchaser had reference to the order that the property might be sold subject to the prior mortgage but the order did not create a right to redeem which came into existence only after the purchase. The fact that the mortgagee knew of the order makes no difference, as he only sought to enforce his mortgage which he was legally entitled to do and no notice of the suit was necessary to the first defendant who is sought to be affected by lis pendens--Manual Fruval v. Sanagapalli Latchmidevamma 7 M.H.C.R. 104. We may observe that in the case of Manual Fruval v. Sanagapalli Latchmidevamma 7 M.H.C.R. 104 there was also an attachment and the doctrine of lis pendens was nevertheless held applicable.

2. The decrees of the Courts below are, therefore, set aside and the plaintiff's claim is decreed with costs throughout. The mesne profits claimed will be ascertained in execution and awarded to the plaintiff.


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