1. The question we have to decide if, whether the suit mortgage is affected by the doctrine of lis pendens. In 1912 a suit for maintenance was instituted against the 1st defendant by a widow of his family. In 1914 a decree was passed in the suit; in 1921 the suit mortgage was executed by the 1st defendant in favour of the plaintiff; in pursuance of an execution petition filed by the widow on August 28, 1925, the property in question was brought to sale and on December 9, it was purchased in Court auction by the 4th defendant, to whom in due course a sale certificate was issued in February 1926. The present suit to enforce the mortgage was filed on December 22, 1925.
2. The lower Courts have repelled the charges of fraud and collusion both in regard to the mortgage in favour of the plaintiff and the sale to the 4th defendant in the Court auction. The first question that then arises is, was there in the suit, within the meaning of Section 52 of the Transfer of Property Act, a right to immovable property directly and specifically in question? That the doctrine of lis pendens applies to maintenance actions, can on the authorities admit of no doubt. The decision, therefore, mainly turned on the question, whether the widow claimed in the suit that her maintenance should be made a charge on any specific immovable properties. Although the plaint in the maintenance action has not been filed, it is perfectly clear from the written statement and the decree to which our attention has been drawn, that the widow specifically mentioned the properties and claimed a charge over them. Mr. Raja Ayyar's contention that the rule of lis pendens does not apply, as the charge was claimed on all the properties of the family, is entirely without force. True, if the properties are not specified if they are enumerated merely for enabling the Court to fix the quantum of maintenance in either case the doctrine will have no application, but if the property is sufficiently designated so as to make it directly and specifically the subject-matter of the litigation, the fact that the charge is claimed over all the properties of the family, can make no difference. If in Rattamma v. Seshachalam 52 M.L.J. 520 : 101 Ind. Cas. 806 : A.I.R. 1927 Mad. 502 : 52 M.L.J. 520 : (1927) M.W.N. 314 decided by Devadoss, J., on which Mr. Rajah Ayyar relies, is implied a different rule, we must with all respect dissent from it. The contention, therefore, that the property mortgaged to the plaintiff, was not directly and specifically involved in the suit, must be overruled.
3. The next question that arises is whether in a maintenance suit the decree terminates the litigation or the lis must be deemed to continue even after the decree. In Bhoje Mahadev Parab v. Gangabai 37 B. 621 : 21 Ind. Cas. 51 : 15 Bom. L.R. 809, on which the plaintiff's Counsel relies, the facts are these. In 1902 defendant No. 1 obtained a maintenance decree which declared a charge in her favour on the family property, in 1905 the judgment-debtors sold a portion of the property to the plaintiff; defendant No. 1 in 1907 applied to execute the decree; in the execution proceedings one of the lands sold to the plaintiff was put to sale and purchased by defendant No. 3 in 1910; the plaintiff sued for a declaration that the Bale to him was not affected by the subsequent execution sale. It was held that the doctrine of lis pendens had no application to the case, for the plaintiff purchased the property four years after the decree had been passed and when no execution proceeding was pending and in such a case (in the opinion of the learned Judges) it could not be said that the purchase by the plaintiff was made during the active prosecution of a contentious suit or proceeding. This case no doubt fully supports the plaintiff, but the principle laid down in it has not been approved by our Court. In Ramaswami Ayyangar v. Govinda Ayyar 31 M.L.J. 839 : 38 Ind. Cas. 1 : 20 M.L.T. 512 : 5 L.W. 443 the question arose whether in a mortgage suit lis pendens ceases upon the passing of a decree. Seshagiri Ayyar, J. observes:
I think the sounder view is to hold that the property continues to be subjected to lis pendens until the actual sale is effected.
Referring to Bhoje Mahadev Parab v. Gangabai 37 B. 621 : 21 Ind. Cas. 51 : 15 Bom. L.R. 809 just cited, the learned Judge goes on to say that he is unable to follow the reasoning in that case. Bakewell, J. in the same case points out:
Under the English Chancery Practice an action for foreclosure or sale continues until an order absolute for foreclosure is made, or if an order for sale is made until the property is sold and the proceeds are paid to the parties; and the High Court of Calcutta has in effect followed this procedure, which also obtains on the original side of this Court under its special rules of practice
He observes that if the matter were res integra, he should be prepared to hold that a mortgage suit remains pending until the rights of parties are finally adjusted, i.e. until the sale monies are distributed or a final decree is passed under Section 90 of the Transfer of Property Act, but he felt himself bound by the decision of the majority in Mallikarjunudu Setti v. Lingamurthi Pantulu 25 M. 244 which in his opinion involved the conclusion that a mortgage suit ceases to be actually prosecuted when the decree is passed. Seshagiri Ayyar, J., however, treating the observations in this case as obiter held, as already stated that the Us continues even after the decree. As regards the actual decision in the case, both the learned Judges agreed that the lease executed by the mortgagor before the sale was inoperative. We are of opinion that the correct principle is that formulated by Seshagiri Ayyar and Bakewell, JJ. in this case and that the Full Bench decision cannot be regarded as an authority in the contrary sense. In two recent cases Abdul Muhammad Rowther v. Seethalakshmi Ammal : AIR1931Mad120 and Aracamudhu Ayyanyar v. Abiramavalli Ayah 66 M.L.J. 566 : 150 Ind. Cas. 930 : (1934) M.W.N. 180 : 29 L.W. 732 : A.I.R. 1934 Mad. 353 : 7 R.M. 45 the view of Seshagiri Ayyar, J. had been adopted. One of the sections of the Transfer of Property Act amended by the Amending Act of 1929 is Section 52 and the legislature has refused to give effect to the Bombay view, for the explanation that has newly been added provides, that the suit shall be deemed to continue until complete satisfaction of the decree has been obtained or has become unobtainable by reason of the expiration of any period prescribed by the law of limitation. We must, therefore, hold, disagreeing with the lower Court that the Us continued after the decree and the mortgage in favour of the plaintiff is affected by lis pendens.
4. We may here mention that the arrears of maintenance due to the widow at the time of the execution sale amounted to Rs. 253 odd. The 4th defendant purchased the property for Rs. 200 subject to the change for subsequent maintenance payable to the widow. The plaintiff offers to redeem the property by paying to the 4th defendant the amount of the paramount charge which he recognises, namely, Rs. 253 odd and says that after redemption, he will similarly hold the property subject to the charge in respect of future maintenance. The position is shortly this: the 4th defendant represents the prior charge-holder and the plaintiff is the subsequent encumbrancer. The latter would ordinarily be entitled to redeem the prior charge, but the result of our holding that his mortgage is affected by lis pendens is that he is deprived of that right.
5. The other contentions raised by Mr. Rajah Ayyar do not require serious notice.
6. In the result, the Second Appeal is allowed and the suit as against the 4th defendant is dismissed; the plaintiff will have no relief as against the suit property. We direct each party to bear his costs throughout.