Abdur Rahman, J.
1. This appeal arises out of a suit instituted in the Court of the Subardinate Judge at Madura on the basis of a mortgage deed (Ex. A) executed by or on behalf of defendants 1 to 4 on the 29th July, 1921, in the plaintiffs favour.
2. The only points for decision in this appeal relate to the enforceability of this mortgage deed and to the lien claimed by the appellant, who was the fifth defendant in the suit, on account of a payment made by his father in satisfaction of a money decree passed in O.S. No. 135 of 1920 against the defendants 1 to 4.
3. The facts which have led to this litigation may be briefly stated. A decree for a sum of Rs. 14,130-11-2 was passed against the defendants 1 to 4 on the 11th November, 1920, in O.S. No. 135 of 1920. The decree-holder made an application for execution and attached various items of property including the one (item No. 3 in those proceedings and the first item in the present suit) with which we are concerned in this appeal. The attachment was made on the 13th December, 1920. Daring the continuance of this attachment, seven items of property including the first item, were mortgaged by the judgment-debtors with the plaintiffs for a sum of Rs. 9,000 on the 29th July, 4921 (Ex. A). Out of this money, a sum of Rs. 5,000 was deposited by the Judgment-debtors on the 1st August, 1920, towards the decree passed in O.S. No. 135 of 1920) and an application (Ex. V) was made by them at the same time for the grant of a month's time for paying the balance of the decretal amount by alienating the properties under attachment. This application was accepted and in accordance with his undertaking contained if the mortgage deed Ex. A the plaintiffs deposited two more sums of Rs. 1,050 and Rs. 1,450 on the two following days (that is, on the 2nd and 3rd August, 1921). The lodgment schedules on the record show that all these three items of Rs. 7,500 were deposited in Court towards the amount of the decree passed in Q.S. No. 135 of 1920. The balance was partly deducted by the plaintiffs towards their own dues and partly paid by them on behalf or the judgment-debtors. The decree was not, wholly satisfied and the Court, after the lapse of the time granted by it in pursuance of Ex. V proceeded to execute the decree. The proclamation of sale is not in evidence and we are not, for that reason, in a position to know the amount for which the sale was ordered. But having regard to the fact that Rs. 7,500 were paid towards the decree passed in O.S. No. 135 of 1920, we must presume that this sum must have been duly credited in partial satisfaction of that decree. Anyhow the execution took its course and the third item of that suit was sold in auction on the 5th October, 1921, for a sum exceeding Rs. 16,000. Before the sale was confirmed, the judgment-debtors applied to the Court on the 25th November, 1921, for permission under Order 21, Rule 83, Civil Procedure Code, to sell the third item privately and also to alienate three more properties (items 4 to 6 - Ex. IV) in the same manner. This was granted on the same day but the Court imposed a condition, as required by that rule on the judgment-debtors that the whole of the sale proceeds or other amounts raised by creating an incumbrance should be deposited by them in Court. A certificate was granted under the provisions of the same Rule 83(2) and the judgment-debtors executed a sale deed of the third item of property on the very next day in favour of Kuppuswami, the father of defendants 5 and 6 for a sum of Rs. 22,500 (Ex. I). Out of this amount a sum of Rs. 17,200 had been deposited by Kuppuswami in Court along with the judgment-debtor's application, Ex. IV, on the 25th November, 1921, that is a day before the sale Heed was executed and the balance of Rs. 5,300 was deposited on the 10th December, 1921. Ex. III which is a copy of the lodgment schedule, however shows that this latter sum of Rs. 5,309 was paid towards the decree passed against the same judgment-debtors in another suit (O.S. No. 40 of 1921). Since the third item of property which the fifth defendant's father had purchased under Ex. I had been auctioned in execution of the decree in Q.S. No. 135 of 1920, it may be fairly presumed that the sum of Rs. 17,200 was deposited by him in the execution of that decree. On payment of this money into Court, the decree in O.S. No. 135 of 1920 was completely satisfied, the sale by the Court was set aside and the attachment made on the l3th December, 1920, deemed to be withdrawn. The sale in Kuppuswami's favour was subsequently confirmed by the Court under the provision of Order 21, Rule 83, Civil Procedure Code. It may be mentioned here that on the same date on which the sale deed in Kuppuswami's favour was executed that is on the 26th November, 1921, the judgment-debtors executed another agreement Ex. H in Kuppuswami's favour under which they agreed to mortgage certain other properties with him in consideration of his paying, a few other debts including the one which they had taken from the plaintiffs under the mortgage deed Ex. A. The original of this document has not been produced but the lower Court has found that it must have been in the possession of the fifth defendant and this finding has not been challenged before us. No money was paid in pursuance of Ex. H to the plaintiffs and they brought the present suit on the basis of their mortgage deed Ex. A This was resisted by the appellant and his sister (the fifth and sixth defendants in the suit) on several grounds. The validity of the mortgage deed Ex. A was first of all questioned for the reason that it was executed by the judgment-debtors during the pendency of the attachment. It was contended that although the properties attached in this execution were not sold through Court, yet the private sale effected by the judgment-debtors after a certificate had been granted by the Court under Order 21, Rule 83(2) and after it was duly confirmed under the provisions of that section must be regarded to be a substitute for a sale through Court and the attachment effected before the mortgage Ex. A must enure to the benefit of the person who purchased the property with the sanction of the Court. It was conceded by Mr. Sitarama Rao that an alienation of a property effected by a judgment-debtor even after it was attached is not void against the whole world; but it would be so, he said, against any person who dealt with the property under the orders of the Court, meaning thereby that as the sale of the third item of property to, his client was made by reason of the attachment under what he calls to be the Court's order, it would be void as. against him.
4. The second objection raised by learned Counsel for the appellant against the validity of the mortgage deed Ex. A was that of lis pendens. It was urged that in so far as the mortgage Ex. A was effected after attachment and during the continuance of the execution proceedings in which the appellant's father purchased the property, it fell within the mischief of Section 52 of the Transfer of Property Act.
5. The third and the last point raised on behalf of the appellant was in regard to an equitable hen which he claimed on the property (the third item in those proceedings) as the auction sale of this item was set aside in consequence of the payment made by his father and this would, it was argued, give a priority to the appellant over the plaintiffs. This contention was supported by learned Counsel for the appellant on more or less the same principle as that on which salvage liens are granted or recognised by Courts in maritime cases or immovable property of one person is, by operation of law, made security for the payment by another. The last of these points was not raised specifically in the pleadings or before the lower Court. Nor was any specific ground taken when the appeal was preferred to this Court; but as it raised a point of law, and the objection on behalf of the respondents was raised almost when the arguments on this point were being concluded by learned Counsel for the appellant, we permitted the arguments to be continued.
6. The objections raised by the appellant and his sister were overruled by the trial Court and a decree was passed in favour of the plaintiffs. Aggrieved by this decree, the fifth defendant appeals.
7. From what has been said it would be clear that the mortgage deed Ex. A came into existence after the third item of property had been attached and put to sale by the Court although k (that is the sale) was not confirmed and eventually set aside. There can also be no doubt that the sale to the appellant's father was made with the permission of the Court under Order 21, Rule 83, Civil Procedure Code, and all the formalities mentioned in that fule were complied with. The points for determination in regard to the first objection of the appellant are:
1. What was the nature of the sale to the appellant's father?
2. Is the claim in respect of the sale to the appellant's father covered by the expression 'claims enforceable under the attachment' used in Section 64, Civil Procedure Code?
3. Was, the mortgage to the plaintiffs consequently void as against the appellant's father?
8. To decide the first point it would be necessary to examine the provisions of Order 21, Rule 83, Civil Procedure Code. It contemplates an application by a judgment-debtor after an order for the sale of immovable property is made but before a sale is actually held. This is so because the order that can be passed on an application under that rule is for the postponement of the sale of the property comprised in the order for sale and not one for the postponement of the confirmation of sale. But the sale had in execution of the decree in O.S. No. 135 of 1920 been, as pointed out before, already, held, although not actually confirmed. How could then an application be made to the Court within the terms of this rule? An application under Order 21, Rule 89 was competent but this could not have helped the appellant's case. Let us suppose however that the application under Rule 83 was entertained, as it seems to have been done, how could the Court agree to sell the property to the fifth defendant's father when it had been actually sold to someone else and the sale was not set aside? Another sale by the Court was, in the circumstances, out of question. Was the sale to the appellant's father then being made, as contended, under the orders of the Court? Or was if simply being done with the sanction of the Court? That there is a great deal of difference between the two is obvious. The Court is not, in the latter case, being approached to order any sale of the property. It could not have done so. It simply authorised the judgment-debtors at their request to deal with the property privately, if they could. But the judgment-debtors were not compelled to alienate the property privately. They might have, in spite of the sanction, done nothing or might not have been able to find a suitable purchaser or alienee. In view of what we have said the answer to the first question is quite clear; but let us examine the provisions of Order 21, Rule 83 even if they are supposed to be applicable to the facts of this case. The term of the first sub-clause indicate clearly that it would apply only when the judgment-debtor wishes to pay off the decree passed against him 'by the mortgage or lease or private sale of such property' as has been ordered to be sold by the Court. The first two modes of alienation, that is, the mortgage or lease, can be available only to an owner of the property (that is, to the judgment-debtor) and not to a Court. If a judgment-debtor does not wish to part with his property permanently and is willing and able to alienate it, temporarily at is desirous of raising the money in that manner, he may be allowed to do so by a mortgage or lease of his property. This method of dealing with the property cannot be held to be under or by reason of the attachment. When we come to the third mode that is, to the sale by which the money could be raised, we find the word private prefixed, thereby leaving no room for doubt that the contemplated sale is a private sale and not one by the Court. Moreover the language of the sub-clause shows that the judgment-debtor's power is not restricted to sell or otherwise alienate his property which was under attachment of ordered to be sold, but that he may satisfy the decree by the alienation of a property which is wholly different from the one that was being sold by the Court would also show that the alienation contemplated by this clause is one by a private treaty only and the Court's sanction is only sought to stay its hands so that the property, which was ordered to be sold may not be put to sale and the operation of Section 64, Civil Procedure Code, avoided.
9. During the course of his argument Mr. Sitarama Rao placed. reliance on Sub-clause 2 of Rule 83. It provides for the grant of a certificate to a judgment-debtor authorising him to make the aforesaid mortgage, lease or sale and this in spite of the provisions contained in Section 64, Civil Procedure Code. Under that section any private alienation of the property attached by a Court would be void as against all claims enforceable under the attachment. But Sub-clause 2 of Rule 83 provides that the certificate granted by the Court would authorise a judgment-debtor to make the alienation in spite of that provision. In other words, the sale, mortgage or lease as the case may be would be taken to have been authorised by the Court not in pursuance of an attachment but in spite of the attachment and this despite a possible opposition by the decree-holder. The mere fact that a certificate is granted cannot be taken as showing that the judgment-debtor when alienating his own property was doing so on behalf of the Court. The attachment cannot be said to have divested the judgment-debtor of his title to the property or to have vested any title in the Court. It only restrains the judgment-debtor from alienating his property and that is all. The grant of certificate to the judgment-debtor removes the bar or impediment and he becomes authorised to alienate it on the condition that all moneys in respect of such an alienation are deposited into Court and not retained by the judgment-debtor. The condition of deposit is thus substituted in place of the absolute prohibition and the rigidity the order of attachment released. A subsequent alienation by the judgment-debtor could not he held to have been made either under or by reason of the attachment.
10. It was next contended that in so far as the alienation authorised by the Court under Rule 83 could not become absolute until it was confirmed by the Court and as the provision contained in Order 21, Rule 92 in regard to the confirmation of sales held by Courts is similar to the one found in the second proviso to the second, sub-clause of Rule 83, it must be held that the sales authorised by this section are also made under the orders of Court. The language of the second proviso to the second sub-clause in Rule 83 does, it is true, bear a close resemblance to that employed in Rule 92; but this is simply because the Court has to satisfy itself in either case that the proceeds of alienation made either through Court or privately have been deposited in Court. Since the result to be achieved in either case is the same, there is nothing surprising that the language of the two sections is also similar in that respect but this does not show that the acts by which the same result is proposed to be achieved are necessarily similar in. character themselves. A sale by the Court in pursuance of an attachment cannot be said to be the same thing as a sale by a judgment-debtor independent or in spite of the attachment. Title in the first case is conveyed by operation of law and any alienation by the judgment-debtor, if contrary to the attachment is void against all claims enforceable under the attachment, while title in the other is conveyed by the judgment-debtor himself, who cannot derogate from his grant even if made after the attachment. The correctness of the decision by the-Division Bench of this Court in Narayana Goundan v. Appdbu Goundan (1934) 67 M.L.J. 741 : I.L.R. 58 Mad. 392 was not questioned by learned Counsel for the appellant, but it was attempted to be distinguished on the ground that the sale in that case was not actually confirmed by the Court. The actual reason for the decision given by our learned brother King, J., was, we take it, contained in the following sentence:
We entirely fail to see how the sub-section (Sub-clause 2 of Order 21, Rule 83) can possibly refer to an attachment made subsequent to the issue of the certificate or affect any claims enforceable, under that subsequent attachment.
11. Other observations in regard to the effect of a want of confirmation on 'a hypothetical mortgagee', as our learned brother Kipg, J., puts it, must be in the nature of an obiter. What the decision in that case would have been if the sale was actually confirmed by the Court under Order 21, Rule 83, Civil Procedure Code, in spite of an attachment of the same property by another Court, it is unnecessary to guess. The Division Bench, was not called upon to answer that question and any general observations cannot be, although entitled to great respect, regarded as authoritative. A Division Bench of the Bombay High Court in Shivlingappa V. Chanbasappa I.L.R.(1905)Bom. 337 has taken the view which has appealed to us and we find ourselves in respectful agreement with the same. We have, for the above reasons, no hesitation in holding that the sale under Order 21, Rule 83 is a. private one and cannot be held to be a sale either by or under the orders of the Court.
12. Having decided the nature of the sale made to the fifth defendant's father, the answer to the second point does not present any difficulty. The plaintiffs' mortgage shall be, to use the language of Section 64, Civil Procedure Code, void only when the sale to the fifth defendant's father can be said to be a claim enforceable under the attachment made on the 13th December, 1920. The point to decide is if it is so. Can the claim by the fifth defendant be said to be enforceable under the attachment if the sale to his father was a private sale made by the judgment-debtors not in pursuance of, but in spite of the attachment? It cannot be so as the fifth defendant's father acquired the judgment-debtors rights only by means of a contract and not independently of the judgment-debtors' will - as he would have done if he had purchase the property after it was attached and sold by the Court. It cannot be denied that if the decree-holder were otherwise satisfied and the attachment had, in consequence, become ineffectual, any private alienation by the judgment-debtors would have been, even if made during the continuance of the attachment, valid and binding. This is only because an, alienation by a judgment-debtor is not, after attachment, wholly void but only voidable at the option of those at whose instance the attachment was effected or in whose interest it was continued and that also to> the extent that those claims were enforceable under the attachment and no further. On account of' attachment an auction-purchaser of a property in a sale in invitum has a superior title, and may have a better one than the judgment-debtors possessed on the date of the sale but this is the result of the provisions contained in Section 64, Civil Procedure Code. A> private purchaser under Order 21, Rule 83 could not be brought within the ambit of Section 64 of the Code of Civil Procedure and held to have a claim enforceable under the attachment. An attachment and a subsequent order for sale may have been the cause of the alienation in favour of a private purchaser but inasmuch as a private sale with the Court's sanction is. absolute against all claims enforceable under the attachment it cannot itself be regarded as a claim enforceable under the attachment. In fact the moment the whole of the decretal amount is paid and the decree satisfied, the attachment ceases to exist under Order 21, Rule 55, Civil Procedure Code not because the object of the attachment has been achieved by its exercise but because the subsistence of the attachment has been rendered unnecessary. It is impossible for us to extend the scope of Section 64 and to hold the same to be applicable to private sales as well. We must for the above, reasons hold that the expression 'claims enforceable under the attachment' does not cover the claim in respect of the sale made by the judgment-debtors to the appellant's father. In view of our decision on the first two points, it necessarily follows that the plaintiffs' mortgage cannot be in our opinion held to be void on account of the attachment in December, 1920.
13. The next objection raised to the validity of the mortgage deed Ex. A is that of lis pendens. The appellant's contention is that a 'lis' came into existence as soon as the third item of property was attached in proceedings in execution of the decree and in' so far as the whole of this item of property became liable to be sold in these proceedings it could not have been otherwise 'transferred' or 'dealt with' 'except under the authority of the Court' 'so as to affect the rights of any other party' such as, according to learned Counsel for the appellant, his client is. By accepting the mortgage from the judgment-debtors, the plaintiffs, according to Mr. Sitarama Rao, stood in their shoes and by purchasing the whole of the attached property with the sanction of the Court, his client's father stood in those the decree-holder. It was urged that the order of the Court sanctioning the sale was binding, on the judgment-debtors and their alienees the present plaintiffs and since the mortgage was executed by the judgment-debtors, during the pendency of the proceedings in execution, the rights of the appellant's father remained unaffected.
14. The right to a property cannot be said to be 'directly and specifically in question' 'after its attachment in execution of a money decree. (See decisions in Sarup Singh v. Narsingh : AIR1929All846 and Mahadeo Saran Sahu v. Thakur Prasad Singh 14n C.W.N. 677. This would be particularly so in cases where the attachment remains undisputed by a judgment-debtor or any other person. But if an attachment can be said to give rise to a lis at all, it could only be in respect of the liability of the property to be sold in execution and for nothing else. This is not the point that arises for consideration in this case. The question here is whether a lis can be said to have come into existence simply because the judgment-debtors made an application under Order 21, Rule 83, Civil Procedure Code and if so what that lis was. The only order that could be passed on that application was either to grant time to the judgment-debtor for the purposes stated in that rule, or not so to do. The Court could not grant permission to the judgment-debtors to mortgage, sell or lease the attached property free of any subsequent encumbrance, which they might have created after the attachment and in the absence of any such order, it would be incorrect for the appellant to contend that he purchased the property free of the encumbrance created by the judgment-debtors in favour of the plaintiffs. Since the essence ;of Section 52 of the Transfer of Property Act is that a transaction entered into during the pendency of a suit or proceeding cannot prejudice the interests of a party to the suit or proceedig who is not a party to the transaction, let us ascertain whether the mortgage to the plaintiffs affected the rights of 'any other party' within the meaning of the expression used in that section. It has been already held by us that the sale by the judgment-debtors in favour of the appellant's father - in spite of a certificate and subsequent confirmation by the Court - was of a private nature. We are unable to see how the appellant's father can be said to be standing in the decree-holder's shoes. It may be that the necessity for a certificate and subsequent confirmation arose on account of the attachment made at the decree-holder instance; but this would not make the private Vendee a representative of the decree-holder. The contention, therefore, that the appellant's lather was the decree-holder's representative is-untenable and both the plaintiffs and the appellant's father must be held to be standing in the shoes of the judgment-debtors alone who mortgaged the property first to the former and sold it subsequently t0 the latter. If that be the correct position and we take it to be so, Section 52 of the Transfer of Property Act would have no application to the facts of this case. The alienation mentioned in Section 52 must be such as 'to affect the rights of any other party thereto' and not the rights of the person who dealt with the property or of those who stand in his Shoes. The judgment-debtors are, it cannot be denied, bound, by the mortgage which they created in the plaintiffs favour. Having 'mortgaged the property to the plaintiffs, it was no longer in their power to derogate from the grant which had been made to the plaintiffs and they could not, in the circumstances, alienate anything more than the equity of redemption. The decree-holder's right in execution was only to bring the property to sale and had the property been sold through Court, the purchaser would have bought the judgment-debtors' right, title and interest as it existed on the date of the attachment regardless of any alienations that might have been made during the continuance of the attachment. But this would be so in virtue of the provisions contained in Section 64 of the Civil Procedure Code and not on account of any doctrine of lis pendens. The contention that every alienation by a judgment-debtor during the pendency of an execution application would be hit by the. provisions of Section 52 of the Transfer of Property Act was repelled by Sir John Wallis in Chamiyappa Tharagan v. Rama Aiyar (1920) 40 M.L.J. 65 : I.L.R. 44 Mad. 232 in that following words:
If this contention were well-founded, an attachment would bounnecessary as the mere filing of the execution petition would be sufficient to prevent alienation.
15. With great respect to the learned Chief Justice, as he then was, we find ourselves in complete agreement with his observation and feel that the observation by Pakenham Walsh, J., in Velayuda Mudali v. Co-operative Rural Credit Society, Ulakottai (1933) 66 M.L.J. 90 : I.L.R. 57 Mad. 426, was too general and, in view of the fact that the properties although sold as free of encumbrance were found to be subject to a prior mortgage, perhaps unnecessary. Reference was made in the course of his arguments by learned Counsel for the appellant to the decisions of their Lordships of the Privy Council in Surnj Bmisi Koet v. Sheo Persad Singh and, G. Anantapadmanabhaswami v. Official Receiver of Secunderabad (1933) 64 M.L.J. 562 : L.R. 60 IndAp 167 : I.L.R. 56 Mad. 405 , but it is unnecessary in this case to decide the question whether a charge was created by the attachment in favour of the attaching creditor or whether the judgment-debtor's interest had been brought by attachment under the control of the Court for the purpose of executing the same so as to preclude the accrual of title by survivorship in the event of the judgment-debtor's death. Even if a charge is assumed to have been created in favour of the attaching creditor, it could not possibly help the appellant as long as he is not found to be a representative of the attaching creditor and the property is not found to have been sold in pursuance of the attachment. We have already found that the appellant's father was not a representative of the decree-holder and know for a fact that the property was not sold by the Court in pursuance of the attachment. Indeed the attachment must be deemed to have come to an end as soon as the decree was satisfied and the moment the attachment ceased to exist, the private alienation of the property during the continuance of the attachment would take effect and have priority over the subsequent alienation when both the alienations were made by the same persons. The decision in Venkatachalapathi Rao v. Venkatappayya (1931) 62 M.L.J. 302 : I.L.R. 55 Mad. 495 does not help the appellant as the attachment was found to have been effected in that case before a stranger had purchased the property pending execution and it was held that he was bound by the decision of the Court regarding the subsistence of attachment although he was not a party to the same. Since the 'orders passed, in the course of execution proceedings adjudicating on the right's of the parties are res judicata and could not be called in question by the parties or their representatives' the ground on which the decision was based can be well understood but this would not advance the appellant's case.
16. We must, for the above reasons, 'hold that there is no merit in the contention that the alienation to the plaintiffs was void on account of lis pendens.
17. The third and the last question which awaits to be decided is that of the equitable lien or charge claimed by the appellant on the ground that it was his father's money which had satisfied the attaching creditor's decree, that but for this payment, the sale of the property held by the Court would have been confirmed and the mortgage in favour of the plaintiffs-respondents would have had no effect at least so far as the third item of the property was concerned. An equitable charge or lien is therefore claimed to have come into existence by operation of law and this, it is urged, would rank higher than the mortgage in favour of the plaintiffs-respondents. In order to appreciate this contention, we must not lose the sight of the facts of this case. It would be recalled that the appellant's father, when he purchased the property, was cognisant of the mortgage in favour of the plaintiffs and had in fact agreed to discharge the same on execution of another mortgage in his favour (Ex. H). It is true that the property was attached at the time when it came to be mortgaged with the plaintiffs, but the money paid by them had, as we have already pointed out in the beginning, gone to discharge the attaching creditor's claim to some extent at least. It would thus be clear that the appellant's father was to become a complete owner of the third item of property not only when he paid the price of the property purchased by him into Court, but after he discharged the plaintiffs' mortgage. Had he carried out the terms of both his contracts, he would have got the whole of the property free from attachment and of the plaintiffs' mortgage. But he failed to carry out his contract contained in Ex. H and the question for decision now is whether the appellant is entitled to a prior charge or security on the property purchased' by his father in preference to plaintiffs' prior mortgage
18. In view of the fact that the appellant's father had purchased the property from the judgment-debtors who had obtained the Court's sanction under Order 21, Rule 83, Civil Procedure Code, to sell it privately on the condition mentioned in the rule, it was incumbent on him to deposit the entire sale proceeds into Court and he did so. Did he then make that payment for the benefit of the plaintiffs or did he do, so to discharge the liability which he had undertaken in consideration of the sale deed to be executed by the judgment-debtors in his favour and for his own benefit?. By getting the auction sale set aside and by procuring. The withdrawal of the attachment, was the property being saved by the appellant's father for the plaintiffs or for himself? The answer to these questions, can only be that he had don(c) all this for his own benefit and not for that of the plaintiffs. How can the plaintiffs then be held lilble for the payment or payments made by the appellant's father? As it is difficult to conceive an equitable charge in favour of the appellant's father in the absence of a personal right of re-imbursement, let us cast a glance in passing, at the provisions of the Indian Contract Act. Section 69 of the Act would have no application as the plaintiffs Were not bound to pay the balance of the attaching creditor's claim which he could realise by the sale of the property. Section 70 cannot be held to apply as the appellant's father did not pay the decretal amount into Court for the plaintiffs but for the judgment-debtors who were liable to discharge the decree' passed against them and were not free to alienate the third item of property on account of the attachment unless they complied with the condition as to deposit of the sale proceeds into Court. Let us now go to the Transfer of Property Act and see if the third item of property could be, by operation of law, held to be security for the payment made by the appellant's father.
19. Reliance was placed by learned Counsel for the appellant in this connection on the line of cases where it was held that if one of two or more co-sharers owning an estate subject to the payment of revenue to Government paid the whole revenue in order to save, and so did save, the estate from liability to be sold by the Government for realising the arrears of revenue, he would be, by operation of law, entitled to a charge upon the share of each of his co-sharers for the realisation of the latter's share of revenue as between the co-sharers vide Rajah of Visianagaram v. Raja Setrucherla Somasekarargz (1902) 13 M.L.J. 83 : I.L.R. 26 Mad. 686 and K. Chengalroya Reddi v. Udai Kavour A.I.R. 1936 Mad. 752. But it must be remem-bered that the payments in those cases were not made by persons who were under, any obligation to discharge their liabilities under personal covenants while the appellant's father was, in the present case, under the terms of his sale deed liable, to do so. Varadachariar, J., in the latter case observed at p. 760 as follows:
If he had come to the conclusiqn that the plaintiff's agent made the deposit in pursuance of an enforceable contract of loan between the plaintiff and the defendant 2 ,it might be doubtful if the plaintiff could have sustained her claim for a charge on the properties, on the analogy of the doctrine of salvage or on equitable grounds, of. Yourell v. Hibernian Babnk. (1918) A.C. 372 .
20. This would show that according to the learned Judge the appellant's father could not, in view of his undertaking to deposit the price into Court, claim a charge or lien.
21. Salvage lien can be claimed by a person if he incurs any expense or makes any payment for saving a ship or its cargo from loss by wreck, fire or capture. Due to the exigencies of the situation that may arise on the high seas when it was impossible to communicate with the owner of the ship or its cargoes, this exception was engrafted in maritime law on the general principle which was to the effect that a person is not ordinarily entitled to recover any payment voluntarily made or, expense voluntarily incurred by him on behalf of another unless a request to do so could be, from the circumstances inferred or some other principle such as contained in Sections 69 and 70 of the Indian Contract Act attracted. This principle was held by their Lordships of the Judicial Committee in Nugenderchunder Ghoss v. Sreemutty Kaminee Dossee (1867) 11 M.I.A. 241 and in Dakhina Mohan Roy v. Saroda Mohan Roy I.L.R. 21 Cal. 142 to be applicable to India and although having regard to the decision in Falcke v. Scottish Imperial Insurance Co. (1886) 34 Ch. D. 234 several High Courts in India have latterly taken a different view, yet so far as this Court is concerned, it has stuck to the view that this principle is still applicable to this country. We have been able to find no authority, however, and none was cited to us at the bar that this principle would be applicable to cases where a person makes s a payment for his own benefit to save a property which belongs to him or when he was under a personal covenant which he was bound to carry out. The appellant's father cannot be said to have paid any money with the object of getting any priority over the plaintiffs, but in. order to get the property which belonged to his vendors at the time of the sale. Since they (that is, the judgment-debtors) had already executed a mortgage in favour of the plaintiffs of which the appellant's father had full knowledge, he can only be taken to have purchased the right title and interest which was owned by his vendors at the time of sale. This sale still holds the field and 'the plaintiffs do not challenge it or want it to be set aside although it is true that if the plaintiffs' claim happens to. exceed She value of the property, the appellant or his sister may; lose the entire property or not be able to recover anything out of its sale proceeds. This is, however, a different matter. The decisions in Dakhina Mohan Roy v. Saroda Mohah, Roy and Mollaya Padayachi v. Krishnaswami Aiyar : AIR1925Mad95 have no application as the payment in those cases were made by persons who Were not the owners of the estate or were adjudged not to have been so finally and not for their own benefit.
22. Moreover, the charge on a property as held in Vyraperumal Mudaliar v. Magappa Maniagarar (1931) 62 M.L.J. 31 : I.L.R. 55 Mad. 468, 'which springs into existence' on a certain date in consequence of payment 'can only avail against that property as it stood on the date of payment and cannot avail retrospectively against prior mortgagees and others who have in good faith or without any suspicion that such a charge may come into future existence advanced money on the property.' There is not the slightest doubt in our minds that the plaintiffs were bona fide mortgagees for value and although if the attachment had continued and the sale confirmed, their mortgage would have been in fructuous as against the attaching creditor, yet they have a prior title as against the appellant's father, who did not only appear on the scene much later but who knew of the plaintiffs' mortgage and had entered into an agreement to discharge the same. The appellant's contention that an equitable charge be declared in his favour cannot be, for the above reasons, upheld.
23. The result is that the appeal fails and is dismissed with costs of plaintiffs-respondents.