John Wallis, C.J.
1. Manjunatha Bhandari filed a suit, Original Suit No. 114 of 1898, for a declaration that the sale deed of the suit properties which he had executed in favour of the first defendant in that suit and this was not binding on him, and for a. further declaration that the mortgage for Its. 2,000 executed by the first defendant in favour of the third defendant in that suit, the father of the present plaintiffs, was not valid and binding on him. The real question was the validity of the sale under Exhibit D, as if that was upheld, the plaintiff had no concern with the subsequent mortgage by the vendee, the first defendant, to the third defendant, the father of the present plaintiffs. The first and third defendants in that suit made common cause and succeeded in upholding the validity of the sale under Exhibit D, subject to the plaintiffs' lien for unpaid purchase money. The first defendant in his written statement admitted his mortgage to the third defendant, and as there was no contest about the mortgage what the High Court apparently decided was that the plaintiff was entitled to a charge on the property for his unpaid purchase money in priority to the third defendant's mortgage. While this suit, Original Suit No. 114 of 1898, was pending, the present second defendant, by Exhibit H, dated 18th December 1899, acquired the first defendant's interest in the suit properties at a sale in execution. It is well settled that the doctrine of his pendens applies to purchases at auction sales in execution of decrees against parties to the suit as well as to private alienations by the parties, and the question before us is whether the second defendant's purchase from the first defendant pending the suit was subject to the result of the suit and whether the result of the suit was to preclude the present second defendant as alienee from the first defendant from disputing the validity of the mortgage executed by the first defendant to the third defendant, the father of the present plaintiffs, in the present suit which they have brought to enforce it. That again raises the question whether the alienation by the first to the second defendant pending suit is affected by the doctrine of his pendens as embodied in Section 52 of the Transfer of Property Act. As there was absolutely no contest on the point between the first and third defendants in that suit, it seems clear that the present case is not within the English doctrine as to his pendens which is intended to protect the parties to litigation against alienations by their opponents pending suit. This is clearly explained by Lord Cranworth in Bellamy v. sabine (1857) 1 De.G.&J.566; where he observes that his pendens affects a purchaser:
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 opposite party.
2. Later on he observes:
pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent,
and in Faiyaz Husain Khan v. Prag Narain I.L.R. (1907) All. 339 Lord Macnaughten, delivering the judgment of the Judicial Committee in a case governed by Section 52 of the Transfer of Property Act, referred to this as the 'correct mode of stating the doctrine'. If then the English doctrine and the principle on which it rests is only applicable as between opponents with regard to alienations made by any one of them during suit, does the language of Section 52 of the Transfer of Property Act compel us to apply the doctrine as between parties to the suit who were ranged on the same side and between whom there was no issue for adjudication? The section provides that:
during the active prosecution of a contentious suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred 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.
3. It is not, I think, putting an unduly restrictive construction on the section to say that 'any other party' whose rights are not to be affected means any other party who can be said to be arrayed on the opposite side to the party alienating owing to the existence of some issue between them upon which the Court is called to adjudicate in the suit which may thus be regarded as a contentious suit between them in which each of them requires the protection of the doctrine against alienations by the other. In other words 'any other party' in this section means any other party between whom and the party alienating there is an issue for decision which might be prejudiced by the alienation.
4. To hold otherwise would have strange and incongruous results which cannot have been contemplated by the legislature. The law of his pendens is an extension of the law of res judicata, and makes the adjudication in the suit binding on alienees from the parties pending suit, just as the law of res judicata makes the adjudication binding on the parties to the suit and on alienees from them after decree. Now it is well settled that the bar of res judicata does not arise between defendants in a suit unless there is an active contest between them. Consequently the issue as to the validity of the mortgage would not be res judicata as between the present plaintiffs, the representatives of the third defendant in the former suit, and the first defendant in that suit and this, or between them and the second defendant if the alienation by the first defendant to the second defendant had been made after the decree instead of during the pendency of the suit. It would be indeed incongruous if the effect of Section 52 were to bar a transferee from one of the parties pending suit from raising an issue which his transferor and transferees from his transferor after decree are at liberty to raise. In these circumstances I think we are justified in placing a restrictive construction on the language of Section 52 so as to avoid this incongruity and to bring the section into line with the English law, more especially as the observations of Lord Macnaughten already referred to seem to support this interpretation. This is the construction put on the section by Oldfield, J., with whom I agree.
5. This is sufficient to dispose of the appeal but, as some reliance has been placed on the fact that the decree of the High Court in Second Appeal No. 323 of 1902 on appeal from the decree of the District Judge in Appeal No. 299 of 1900 affirming the decree of the District Munsif in Original Suit No. 114 of 1898 contains a declaration of the validity of the mortgage, Exhibit I, by the first defendant to the third defendant subject to the plaintiff's claim for Rs. 1,000 for unpaid purchase money which, it is said, amounts to an adjudication on the question, I may state that this declaration is not, in my opinion, an adjudication between the first and the third defendants in that suit. In their judgment, Exhibit E, the High Court expressly directed the decree of the lower Court to be modified by the insertion of this declaration 'as between the plaintiff and the third defendant' and accepted the findings of the lower Court, one of which was that the mortgage by the first defendant to the third defendant was fraudulent and without consideration (paragraph 5). It is not easy to reconcile their acceptance of this finding with the declaration they granted of the validity of the mortgage as between the plaintiff and the third defendant. But, as already pointed out, in the result of the suit the plaintiff was not concerned with the validity of the mortgage seeing that it was postponed to his claim for unpaid purchase money and that he had failed to set aside his sale to the first defendant, and probably all that was meant was that the mortgage, which the first defendant the mortgagor did not dispute, was to be subject to the plaintiff's lien for Rs. 1,000 for unpaid purchase money. In the result I agree with Oldfield, J., and would allow the Letters Patent Appeal with costs and make the order proposed by him.
6. I agree.
Kumaraswami Sastriyar, J.
7. I agree.