1. The appeal has been argued only on the question whether the 5th defendant's purchase was invalid, because it was made pendente lite, and whether the property in his hands could therefore still be made liable for the plaintiff's maintenance at the date of suit.
2. The law applicable, Section 316 of the Code of Civil Procedure then in force, provides generally that, so far as regards the parties to the suit, and persons claiming through or under them, the title to property sold, as this was, at court sale shall vest in the purchaser from the date of sale certificate. The Lower Appellate Court has however held that, though the date of the fifth defendant's certificate is subsequent to the date of the plaint, that fact is not decisive against parties to the suit and persons claiming through or under them and (2) the section does not deprive the purchaser of an equitable title, incomplete until, the sale is confirmed, but on confirmation dating back to the date of sale.
3. As regards (1) the dispute is not between the plaintiff who is claiming maintenance and a charge in order to its enforcement, and the 5th defendant, purchaser from the 2nd defendant in court sale. The plaintiff's claim to maintenance was at the date of the institution of the present proceedings unsecured; in fact it is only through them that she can, if successful, obtain the property sold to the 5th defendant as security. The decisions shown us and to be referred to apply Section 316, not to the case of a person, who had still to establish a claim against the property in dispute and who could do so only on the assumption that the section was applicable, but to cases, in which his interest has already been constituted independently.
4. If however the plaintiff is a stranger and her position is not directly covered by Section 316, the question remains as to the date, on which the sale became final against her. In Pran Chand Pal v. Purinia Dasi I.L.R. (1888) C. 646 it was held that as regards third parties also the title of the auction purchaser did not become complete in any sense before the date of confirmation of sale. This however is inconsistent with the later decisions of the same court, Adhur Chander Banerjee v. Aghose Nath Aroo 2 C.W.N. 589, and is doubted in Dagdo v. Panohansingh Gangaram I.L.R. (1892) B. 476. These apparently conflicting views can however I think be reconciled with reference to the conclusion regarding the nature of the auction-purchaser's interest at different stages, reached in the last two mentioned and other cases, on which the Lower Appellate Court's second ground of decision is based.
5. That interest, as described in Adhur Chander Banerjee v. Aghore Nath Aroo I.L.R. (1910) A. 36, is 'an equitable or inchoate title which the grant of certificate made absolute and made to relate back to the date of sale, and the description in Dagdo v. Panchansingh Gangaram I.L.R. (1888) C. 546, is similar. The existence of a title of that contingent nature, which could be relied on only after confirmation of the sale had taken place, would not have been material in Pran chand Pal v. Purinia Dasi I.L.R. (1902) A. 476, where the question was of the 5tranger's right or duty to discharge a mortgage before the date of confirmation. It would have been immaterial also in Amir Kazim v. Darbari Mal I.L.R. (1902) A. 476 where the question was of mesne profits, which the plaintiff could not claim from an earlier date than that on which he might, (after confirmation of the sale) have obtained possession. It no doubt has not been shown that another later case, Shiam Lal v. Natha Lal I.L.R. (1881) 6 B. 189, can be similary distinguished; but none of the authorities decided differently. Pran Chand v. Purinia Dasi I.L.R. (1886) B. 453 seems to have been brought to the Court's notice. Following these cases I agree with the Lower Appellate Court that the auction purchaser's title arises on, and, in case the sale is confirmed becomes complete with effect from the date of sale; and that for the purpose of cases, such as the present, this principle is applicable against strangers, such as the plaintiff.
6. The decree of the Lower Appellate Court must therefore be confirmed, the second appeal being dismissed with costs.
7. The question on which this depends is whether or not the interest of the 5th defendant in the property which he claims was created, during the active prosecution of the suit out of which the appeal arises. If so then it will not affect the, plaintiff's rights under the decree, under Section 52 of the Transfer of Property Act.
8. That question depends upon the date on which the 5th defendant's interest arose. The appeal has been argued, before us solely with reference to the interpretation of Section 316 of the Code of Civil Procedure 1882. Though the title under that section is made to date from the certificate and not before, it has been held that the express reference to 'the parties to the suit' is intended to restrict the operation of the section so as not to affect strangers Adhur Chander Banerjee v. Aghore Nath Das I.L.R. (1887) B. 588 A different view was however expressed In Pran Chand Pal v. Purinia Dasi I.L.R. (1886) B. 403 and Amir Kazim v. Darbari Mal I.L.R. (1902) A. 476 Shiam Lal v. Natha Lal I.L.R. (1881) B. 189.
9. The decision in Pranchand Pal v. Purinia Dasi I.L.R. (1886) B. 403, was that the mortgage debt therein referred to was not merged in the decree for sale from the confirmation, and in Amir Kazim v. Darbar Mal I.L.R. (1902) A. 476, the decision was that the date from which the purchaser was entitled to mesne profits and rent respectively was the date of the confirmation. For these decisions it was necessary to decide when the title vested completely in the purchaser. They do not derogate from the proposition expressly left untouched in Amir Kazim v. Darbar Mal I.L.R. (1902) A. 476, that the purchaser acquires an equitable interest from the date of the sale even prior to the confirmation. On this point there is no conflict of authorities Rrishnaji Raivji Godbole v. Ganesh Bapji Patvardhan I.L.R. (1881) B. 189 Yeshwant Babu Rai v. Gobind Shunku I.L.R. (1886) B. 403 Chintaman. Ram Natu v. Vitabai I.L.R. (1887) B. 588 Raj Krishna Mookerjee v. Badah Madhab I.L.R. (1892) B. 376 referred to in Dagdu v. Panchansigh Gangaram I.L.R. (1892) B. 376. The 2nd and 3rd cases above mentioned have been referred to by the High Courts other than that at Bombay without dissent. It seems to me therefore that as the equitable interest of the 5th defendant was created prior to the institution of the plaintiff's suit the decision under appeal was right in holding that the doctrine of lis pendens did not apply to that interest. I would accordingly dismiss the appeal with costs.