1. This appeal is against an order making absolute an attachment of a vendor's lien in execution of a mortgage decree. The appellant is the transferee from the original vendee. There were three items sold two of which were covered by a mortgage. The vendee retained with himself a sum of money sufficient to discharge the mortgage and the interest thereon. He did not discharge the mortgage but sold the three properties to the present appellant, the transfer also reciting the fact that money had been retained for the discharge of the mortgage. The appellant also did not discharge the mortgage. Consequently the mortgagee has sued thereon arid in execution of his mortgage decree the two items actually covered by the mortgage have been sold. The mortgagee is now seeking to recover the balance due under the mortgage decree by attachment and sale of the original mortgagor's lien as vendor over the third item which was no part of the mortgaged property.
2. It is contended that when a vendee retains in his hands part of the purchase price for payment to a mortgagee of a portion of the property sold, the vendor's lien does not exist. The only authority quoted in support of this proposition is an Oudh case which relies on the decision in Abdulla Beary v. Mammali Beary I.L.R.(1910) 33 Mad. 446, which itself has been overruled by the Full Bench in Sivasubramania Aiyar v. Subramania Aiyar : (1916)31MLJ530 . It seems to me a self-evident proposition that the statutory lien created under Section 55(4)(b) of the Transfer of Property Act must operate to the extent to which there is any portion of the purchase money lying unpaid in the hands of the vendee or his transferee with notice. If there is a novation or a direct undertaking between the vendee and the creditor for the payment to the latter of the money retained in the vendee's hands, then that money may cease to be a part of the unpaid purchase price and may become a debt payable only to the creditor in respect of which there can obviously be no occasion for a lien in favour of the vendor. But when there is no privity between the vendee and the creditor who is to be paid off, the money in the hands of the vendee, whatever be the purpose for which it is retained, remains in fact money at the disposition of the vendor who can presumably countermand the instructions given to the vendee as to the disposal of that fund. It is therefore the vendor's money in respect of which he is entitled to the statutory lien.
3. There can be no doubt that in the present case the appellant purchased the property with full notice of the liability undertaken by the original vendee. He cannot therefore resist the attachment of the vendor's right.
4. The appeal is therefore dismissed with costs.