1. These appeals are concerned with a village in the Salem district called Chettihalli. The mittadar, or owner of the melwaram right in this village was one Ramakrishna Chettiar (to be referred to hereinafter as the mortgagor). He mortgaged his rights in this and other villages to the plaintiff in O.S. No. 33 of 1940, District Munsif's Court, Dharmapuri from which the present appeals have arisen. This was so long ago as 1921, 1922 and 1923, and was effected by three mortgage deeds. Defendants 1 to 3 in O.S. No. 33 of 1940 are inamdars of Chettihalli whose right consisted in receiving every year from the mittadar one-third of the sum payable by the mittadar to Government as peshkush. Attached to this right is a first charge on the mittadar's interests in the village. On 30th June 1933, the defendants sued the mortgagor for arrears of this payment of one-third of the peshkush, and for the enforcement of their charge. They obtained a decree on 10th April 1934, brought the mortgagor's property to sale on 24th October 1934, and obtained delivery in execution of their decree on 4th December 1934. To this suit the plaintiff, who, by virtue of defendant's prior charge, may now be called the puisne mortgagee, was not made a party. On 12th October 1933 plaintiff sued the mortgagor on the three mortgages. He obtained a decree on 25th July 1934, sold the mortgagor's property on 3rd October 1935 and obtained confirmation of his sale on 6th March 1936. In that suit plaintiff did not imp lead the defendants. Plaintiff next sought to obtain delivery of the property which he had purchased. Defendants naturally obstructed him. An application by plaintiff to remove the obstruction was dismissed on 18th Augustl938. The result wan the present suit by plaintiff filed in August 1939 though now numbered as O.S. No. 33 of 1940, to set aside the adverse order. The suit was dismissed by the learned District Munsif of Dharmapuri. Plaintiff's appeal against this decree dismissing his suit was hoard by the learned Subordinate Judge of Salem who on 12th January 1943 passed an order of remand against which both parties have now appealed.
2. The learned Subordinate Judge's findings were these: (i) Plaintiff must pay to defendants the amount due on their decree, (ii) In calculating this amount, plaintiff will have to pay interest, but defendants must give credit for income received by them from the village while they were in possession of it. (iii) Defendants must pay to plaintiff the proportionate amount due to him on his decree for this particular village, (iv) These sums will be set off one against the other, and the exact amount thus found to be due by the defendants will be declared, (v) If defendants do not pay, the property will be sold, and directions are given for the distribution of the sale proceeds. (It follows from this that if defendants do pay, their possession will not be disturbed, and their ownership will be recognized.) (vi) The suit was remanded] for an enquiry into the precise amount thus to be declared payable by the defendants, and for the passing of a decree on the lines indicated by the learned Subordinate Judge. Both parties have appealed from this order of remand. The principal appeal is that of the plaintiff (A.A.O. No. 420). He contends that he has the better title to the property concerned, and that defendants have no right to redeem him. Defendants in C.M.A. No. 458 contend that plaintiff cannot redeem them, so that their title is unassailable and plaintiff's suit should be forthwith dismissed. There was also a contention (not, however, formulated in the grounds of appeal) that defendants need not give credit for the income which they had received.
3. Plaintiff's case regarding the superiority of his own title was put very simply as follows, and depends on the provisions of Order 34, Civil P.C. Defendants ought to have imp leaded him in their suit of 1933 (see Rule 1 of that Order) and not having done so the decree which they obtained cannot be binding upon him. Plaintiff on the other hand, was not bound to imp lead the defendants in his suit (see the same rule). Plaintiff filed his suit in October 1933, defendants acquired no rights to the equity of redemption until October 1934. When the case is put in this simple manner, there can be no doubt that plaintiff is right in contrasting his own correct procedure with the incorrect procedure of the defendants, but it does not, in our opinion, necessarily follow that plaintiff's title, as subsequent purchaser in his own suit, must prevail over defendants' title as purchasers in theirs. It is only if the doctrine of lis pendens can be successfully applied to this case that plaintiff can claim that his decree binds the defendants, who were not in fact parties to his suit. Plaintiff in contending, that the doctrine of lis pendens can be extended to the present case relies on a Full Bench ruling of the Allahabad High Court, Ram Sanahilal v. Janki Prasad : AIR1931All466 . In Madras, however, the extension of the doctrine to cover the case of an involuntary alienation in execution of a mortgage decree has been refused, see Chinnaswami Padayachi v. Dharmalinga Padayachi A.I.R. 1932 Mad. 566. The transfer to which the provisions of Section 52, T.P. Act, can properly be applied is the creation of the mortgage itself not the subsequent sale in the enforcement of the mortgage. It may be that, as argued for the plaintiff, the enunciation of this legal principle in Chinnaswami Padayachi v. Dharmalinga Padayachi A.I.R. 1932 Mad. 566 was obiter dictum, but with respect, we do not consider the principle any the less sound on that account and we prefer to follow it rather than the contrary view as expressed in Allahabad.
4. We thus reach the position in which each party relies upon a title which is imperfect in that it does not bind the other. In these circumstances are there any grounds for preferring the plaintiff? So far as priority of time in the acquisition of the title is concerned, it is the defendants and not he who can claim the advantage. Plaintiff contends that in equity he should be preferred, again stressing the correctness of his procedure in filing his suit. But we see no particular meritorious behavior in plaintiff when we look at the history of this case as a whole. He was of course within his rights in filing his suit without imp leading the defendants, but, although no specific provision of the Civil Procedure Code compelled him to imp lead the defendants in taking his proceedings in execution in 1935 and 1936, he ought, in our opinion, to have done so. There can be no serious doubt that plaintiff must have become aware of the sale in October 1934 by which defendants acquired their title. Certainly no facts were put forward in appeal in support of any plea of ignorance, and naturally plaintiff would always be greatly interested in the payment by his mortgagor of his annual duos to the defendants. We are of opinion therefore that the refusal to imp lead the de-fondants in the execution proceedings was deliberate and that plaintiff can claim no equitable relief. His appeal must be dismissed with costs. The defendants have not seriously pressed their appeal. They succeeded in persuading the first Court that no redemption is possible of a decree like theirs based upon a charge given for annual payments, but did not repeat this attempt before the learned Subordinate Judge or before us. The claim that they are not liable to account for income received is negatived by Natesan Chettiar v. Ramalingam Chettiar : AIR1937Mad769 . Their appeal also fails and is dismissed with costs.