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Parvati Ammal Vs. Govindaraja and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in76Ind.Cas.896
AppellantParvati Ammal
RespondentGovindaraja and anr.
Cases Referred and Krishnappa v. Shiwappa
Excerpt:
transfer of property act (i v of 1882), section 52 - mortgage suit--alienation of mortgaged property during pendency of suit--hiss pendens, doctrine of, applicability of--compromise of suit, effect of. - .....been instituted. the question that arises is whether the doctrine of lis pendens applies to the sale m question and whether it should be held to have been subject to the result of the mortgage-decree. the learned subordinate judge has answered this question in the negative relying on the ruling in upendra chandra singh v. mohri lal marwari 31.c.745. we are unable to concur in that view. that ruling is inconsistent with the ruling of the privy council in faiyaz husain khan v. munshi prag narain 29 a. 339 : 11 c.w.n. 561 : 4 a.l.j. 344 : 5 cri. l.j. 563 : 17 m.l.j. 263 : 9 bom. l. r. 656 : 2 m.l.t. 191 : 10 o.c. 314 : 34 i.a. 102 and has not been followed even in calcutta. see tinoodhan chatterjee v. trilokya. saran sanyal 18 lnd. cas. 177; 17 c.w.n. 413. it has been dissented from in.....
Judgment:

1. This second appeal is argued mainly with reference to the property covered by sale-deed Exhibit B. That sale was made after the Suit No. 13 of 1915 (on the file of the Court of the Temporary Subordinate Judge of Madura) to enforce a mortgage on the property by its sale had been instituted. The question that arises is whether the doctrine of lis pendens applies to the sale m question and whether it should be held to have been subject to the result of the mortgage-decree. The learned Subordinate judge has answered this question in the negative relying on the ruling in Upendra Chandra Singh v. Mohri Lal Marwari 31.C.745. We are unable to concur in that view. That ruling is inconsistent with the ruling of the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain 29 A. 339 : 11 C.W.N. 561 : 4 A.L.J. 344 : 5 Cri. L.J. 563 : 17 M.L.J. 263 : 9 Bom. L. R. 656 : 2 M.L.T. 191 : 10 O.C. 314 : 34 I.A. 102 and has not been followed even in Calcutta. See Tinoodhan Chatterjee v. Trilokya. Saran Sanyal 18 lnd. Cas. 177; 17 C.W.N. 413. It has been dissented from in this Court in Poolakkal Kathur v. Chennagadam Mammadissa 20 Ind. Cas. 976 : 38 M. 450 : (1913) M.W. N. 672 : 14 M.L.T. 185 and the learned Vakil for the respondent has rightly not attempted to support it. As regards the question whether the fact that the suit was subsequently compromised made it a non-contentious suit, it is clear from the authorities that it did not. See Mnnamalai Cheitiarv.Malayandi Appaya Naik 29 M. 426 : 1 M.L.T. 145 : 16 M.L.J. 372. and Krishnappa v. Shiwappa 31 B. 393 : 9 Bom. L.R. 530. : We must, therefore, hold that the sale under Exhibit B is affected by the mortgage-decree and plaintiff's suit with reference to it must be dismissed. As regards the sale under Exhibit A, however, plaintiff is entitled to a declaration that the property is not liable to be sold in execution of the mortgage-decree and to an injunction to prevent such a sale. The decree of the lower Appellate Court will be modified accordingly The parties will pay and receive proportionate costs throughout.


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