1. The only point in this second appeal is, is the plaintiff entitled to redeem the suit property? In order to understand the contention a few facts are necessary. The 2nd defendant was an abkari contractor and defaulted to pay the amount due to Government. A demand notice was served on him on 27th May, 1917 followed by a sale notice on 3rd July, 1917 and the sale of the suit property by the Revenue authorities was held on 10th August, 1917 and was purchased by the plaintiff. The suit property was at the time of the sale under a mortgage in favour of the 3rd defendant. He filed a suit on 13th July, 1917, obtained a mortgage decree and brought the mortgage property to sale on 4th March, 1919. The property was purchased by the 1st defendant herein. There were criminal proceedings between the plaintiff and the defendants, and the plaintiff has brought this suit for possession of the suit property on the ground that he is entitled to it and in the alternative he prays for redemption of the mortgage in favour of the 3rd defendant. The 1st defendant got possession of the property on 13th July, 1919 and the present suit was filed on 10th July, 1920.
2. The contention of Mr. Rangaram for the appellant is that the sale for arrears of abkari rent or kist was by the Government and therefore he is entitled to the plaint property, and if that contention is not good he prays that fie may be given a decree for the redemption of the mortgage in favour of the 3rd defendant. The property having been sold in execution of the mortgage decree, and purchased by a third person, the question is whether the person who purchased the mortgage property pending the mortgage suit is entitled to redeem the mortgage after the mortgage has been merged in the decree and the property was purchased by a third person. The argument is that inasmuch as the Government attached the suit property for arrears of abkari rent, effect must be given to the attachment, and the sale by Government after the attachment must convey some title to the purchaser; in other words, a purchaser under such circumstances stands on a much higher footing than a private purchaser. It is contended that if the 2nd defendant had sold the property to a private purchaser pending the mortgage suit, the purchaser would not get a higher title than the mortgagor himself. But such a purchaser would be entitled to come in and ask to be made a party to the mortgage suit so as to enable him to redeem the mortgage. After the mortgage decree was passed and the property was brought to sale in execution of the mortgage decree and purchased by a third person, can such private purchaser from the mortgagor be held entitled to redeem the mortgage on the ground that he had acquired title prior to the date of sale in execution of the mortgage decree. I do not think that anybody could contend that a private purchaser under such circumstances would be entitled to redeem the property in the hands of the auction purchaser.
3. Reliance is placed by Mr. Rangaram upon Sarangapani v. The Secretary of State for India in Council I.L.R. (1893) M 479 as supporting his contention. In that case certain land was put under attachment for arrears of revenue under the Madras Abkari Act, Section 28. The same land was subsequently attached in execution of a money decree against the defaulter and the defendant purchased it at the Court sale. The Collector objected to the sale of the land in question, but his objection was rejected. A suit was brought in the name of the Secretary of State for a declaration that the land was liable for the arrears of revenue in respect of which the attachment under the Abkari Act was made. A Bench of this Court held that the plaintiff was entitled to the declaration asked for. In support of the decision reliance was placed upon Subramanya v. Rajaram I LR (1885)M 573. With due respect to the learned Judges I am unable to see how the case in Subramanya v. Rajaram I LR (1885) M 573 applied to the facts of the case in Sarangapani v. The Secretary of State for India in Council I.L.R. (1893) M 479 . What the learned Judges say is that the interest acquired by the auction purchaser in execution of the money decree was subject to the liability which had been legally imposed in due course of law and the purchaser could take no more. The attachment for arrears of abkari dues does not create any interest in the property, The attachment does not create a charge, and it is difficult to see what other rights it could create. If it does not create a charge, how could it affect the sale subsequently held in execution of a money decree by the Civil Court. The case in Subramanya v. Rajaram I LR (1885) M 573 instead of supporting the principle of the decision in Sardngapani v. The Secretary of State for India in Council I.L.R. (1893) M 479 seems to be directly against it. In that case the interest of a tenant in a certain land was attached by his creditor in execution of a money decree. The landlord attached the same land for arrears of rent and brought it to sale and purchased it under the provisions of the Rent Recovery Act. The creditor subsequently purchased the interest of the tenant which was sold In execution of the decree. It was held by Muthuswami Aiyar and Parker, JJ. that the landlord's purchase was subject to the creditor's attachment. They observed at page 575:
It follows then that the landlord could only sell the tenant's interest, such as it was at the date of his attachment and sale, and that his power under Section 38 is nothing more than the power which an execution-creditor ordinarily has over his debtor's property.... In the view which we take of the landlord's power under Section 38 of Act VIII of 1865, he could only stand in the place of the tenant, and bring to sale for arrears of rent such interest as the tenant had power to sell at the date of the attachment and sale. This interest the tenant had no power to alienate to the prejudice of any claim enforceable under the attachment, and the landlord could not do more.
4. In the present case, there was a mortgage suit pending, and pending the mortgage suit the Revenue authorities brought the properties to sale for arrears of abkari dues. Could the Collector by such a sale give a higher title to the purchaser at the sale than the owner of the land himself could have given if he had alienated the property privately? The contention that the Collector or the Government could give a higher title to a purchaser under such circumstances is on the face of it untenable. The Collector or the Revenue authorities in such a case act only as the owner of the land himself could act. No doubt the case will be different if it was a revenue sale for arrears of land revenue, for under the Revenue Recovery Act land revenue is the first charge on the property and any sale for arrears of land revenue would convey good title to the purchaser free of all encumbrances on the land. But a sale for realising the abkari dues, or forest dues, or other dues than the land revenue would not give such a right to the purchaser as the sale for arrears of revenue. The authority of Sarangapani v. The Secretary of State for India in Council I.L.R. (1893) M 479 cannot be accepted as good law in view of the decision of the Privy Council in Ragho Prasad v. Mewa Lal I.L.R. (1912) A 223. There, there was a sale by the Collector under the Civil Procedure Code for the amount due in respect of Court-fees payable by the plaintiff on a suit in forma pauperis. The Privy Council held that the purchaser under such a sale got no title which would prevail against the purchaser in a suit which was pending at the time the Collector brought the property to sale. Lord Macnaghten, in delivering the judgment of their Lordships, observed:
The Crown has no more right than a 'common person' to seize A's property and apply it in or towards the discharge of a debt due from B. That is not a question of law. It is a matter of common justice, and it may be added, of common honesty.
5. Reference may also be made to Kadir Mohideen Marakkayar v. Muthukrishna Aiyar I.L.R. (1902) M 230 in this connection. In that case the share of a co-parcener was sold for arrears of income-tax. It was held that the share of the co-parcener was bound by the decree in the mortgage suit, notwithstanding such co-parcener was not joined in the suit as one of the legal representatives of the mortgagor. The learned Judges observe at page 236:
If the second defendant had been a purchaser at a revenue sale for arrears of land revenue which accrued due in respect of the land purchased by him, the case would be quite different and the doctrine of lis pendens would not apply; for in that case the revenue sale would be in enforcement of a right of the Crown paramount to the mortgage right sought to be enforced.by the decree of the Civil Court, and not simply of the right, title and interest of the defaulter as in the case of a sale for arrears of income-tax.
6. In this case the sale was during the pendency of the mortgage suit and as such cannot avail against the 1st defendant who purchased the property in execution of the mortgage decree. The doctrine of lis pendens applies to this case, and I therefore hold that the plaintiff is not entitled to redeem the suit property.
7. In the result the appeal fails and is dismissed with costs.