1. On 6-10-88, a suit (O.S. No. 1 of 1889) was filed by a Hindu widow for maintenance. As to one of the defendants (14th) impleaded in that suit, she alleged that he held a mortgage over a portion of the property sought to be charged with the maintenance and that the said mortgage was obtained fraudulently and without consideration, was not for family benefit and could not affect her right to charge the maintenance on the mortgaged property. The 14th defendant pleaded that he held two hypothecation bonds from the 1st defendant and that he had sued on the latter in O.S. No. 16 of 1887, and obtained a decree (on 28-9-87).
2. The District Judge found that the plaintiff had no cause of action against the 14th defendant. He gave a decree for maintenance which was made a charge against the interests of defendants 1 and 2 in the plaint properties subject to the lien claimed by the 14th defendant among others. (22-8-90).
3. Meanwhile in execution of O.S. No. 16 of 1887 the mortgaged property was sold on 28-11-1889 and the decree-holder purchased it and obtained delivery on 25-12-1889. The respondents before us are his assignees.
4. In execution of the maintenance decree the same property was sold on 10-3-1920 and the purchaser obtained delivery on 19-7-1920. He is the appellant before us. Objection was made by the respondents to the delivery and the matter came up to this Court under Section 47, C. P. Code in C. M. A. No. 11 of 1921. The two learned Judges who heard it having differed, the appeal was dismissed under Section 98, C.P.C. Hence this Letters Patent Appeal.
5. The appellant, while conceding that his purchase was subject to the mortgage of the 14th defendant in O.S. No. 1 of 89, claims that he can ignore the sale in execution of O.S. No. 16 of 87 and contends that his purchase is valid subject to the mortgage which he is entitled to redeem. This contention is raised in two forms:
6. That the decree holder in O.S. No. 1 of 1899 was in the position of a second mortgagee and that first mortgagee not having impleaded her in the sale proceedings of O.S. No. 16 of 1887, he is still liable to be redeemed, by the second mortgagee or by the appellant who is subrogated to the second mortgagee's rights. It is true that, when a first mortgagee sues on his mortgage without making the second mortgagee a party, brings the property to sale and purchases it in execution, the right of the second mortgagee to redeem the first mortgage is not extinguished by the proceedings in such a suit to which he was not a party. Mulla Veettil Seethi v. Achuthan Nair (1910) 21 MLJ 213 (FB). But the principle cannot apply in this case as the so-called second mortgage did not exist either at the time of the suit or decree (O.S. No. 16 of 1887) or even at the time of the sale in execution of the decree. The charge granted by the maintenance decree in O.S. No. 1 of 1889 came into existence only at the date of the decree and not earlier. The charge can be made use of as if it existed at the date of the plaint only by the principle of lis pendens. This leads to the next contention.
7. By the doctrine of lis pendens, the 14th defendant in O.S. No. 1 of 89 was prohibited from dealing with the property [or selling it in execution, Kunhi Umah v. Amed ILR (1890) M 491 ] which was the subject of the maintenance suit [Dose Thimmanna Bhutta v. Krishna Tantri 16 MLJ 413], so as to affect the rights of the plaintiff under the decree therein. The appellant contends that the sale in execution of O.S. No. 16 of 1887, if upheld, will so affect the plaintiff's rights under the decree in O.S. No. 1 of 1889. This contention cannot be accepted. In O.S. No. 1 of 1889 it was held that the plaintiff had no cause of action against the 14th defendant, that his mortgage was perfectly valid and the charge given to the plaintiff was subjected to his rights. The decree used the word ' lien ' but as the judgment made no distinction between the mortgage and the decree (which was also known to the Court) obviously all the rights of the 14th defendant under his decree were intended to be saved. This is the natural and proper construction of the decree in the light of the findings in the judgment and the pleadings. That being so, it cannot be said that the sale in execution of O.S. No. 16 of 1887 affects the rights of the plaintiff in O.S. No. 1 of 1889 under the decree which saved the rights of the decree-holder in O.S. No. 16 of 1887. The consideration that the effect of this conclusion is to make the hen obtained by the decree-holder in O.S. No. 1 of 89 illusory so far as the property mortgaged to 14th defendant was concerned, cannot affect the construction of the decree which expressly saved the rights of the 14th defendant and cannot, by implication, adversely affect such rights simply because it purported to give a charge to the plaintiff on the interests of defendants 1 and 2 which had ceased to exist.
8. The appeal is dismissed with costs.
9. Letters Patent Appeals Nos. 11 and 12 follow and are dismissed. In L. P. A. No. 12 with costs.