Skip to content


Marina Ammayi Vs. Chaganti Sitaramayya - Court Judgment

LegalCrystal Citation
SubjectCivil ;Property
CourtChennai
Decided On
Reported inAIR1925Mad1039
AppellantMarina Ammayi
RespondentChaganti Sitaramayya
Cases ReferredRamasami Aiyangar v. Govinda Iyer
Excerpt:
- .....there was no execution proceeding actually going on under the mortgage-decree at the time when the sale in execution of the money decree took place, and as the final decree had already been passed, the latter purchase by the purchaser in the mortgage suit did not prevail against the purchaser under the money-decree and he, therefore, reversed the order of the district munsif and directed the respondent to be put back into possession.2. it seems to me that the order of the subordinate judge cannot be supported. there can be no doubt that in a mortgage suit lis pendens continues up to the date when either foreclosure takes place or the property is sold and the mortgage-decree is satisfied. a clear authority was cited before the subordinate judge in support of this, namely, the ruling in.....
Judgment:

Krishnan, J.

1. This is an appeal against an appellate order of the Additional Subordinate Judge of Cocanada. The appellant before me is a person who purchased in execution of a mortgage decree the property which is the subject-matter of this application. Her purchase was subsequent to the purchase by the respondent who purchased in execution of a money-decree. The mortgage suit had been brought previously and a final decree had been obtained by the mortgagee for sale of the property. It was in that state of circumstances that the property wag subsequently attached by the money-decree-holder and brought to sale, and it was in that execution proceeding that the respondent purchased the property. The respondent seems to have obtained possession of the property in execution. Subsequently the mortgage decree was executed and the property was brought to sale and purchased by the appellant before me. She applied for possession and was put in possession of the property. Application was then made under Rule 100 of Order 21, C.P.C., by the respondent before me, to the District Munsif praying that he may be pub back into possession of the property and contending that he was not bound by the proceedings in execution of the mortgage-decree or by the sale. The District Munsif rightly held that the respondent was bound by the proceedings in the mortgage-decree, and that the purchase by the appellant prevailed against him and, therefore, dismissed his petition. On appeal, however, the Subordinate Judge has come to the conclusion on the view that lis pendens does not continue after the final decree is passed; that, as there was no execution proceeding actually going on under the mortgage-decree at the time when the sale in execution of the money decree took place, and as the final decree had already been passed, the latter purchase by the purchaser in the mortgage suit did not prevail against the purchaser under the money-decree and he, therefore, reversed the order of the District Munsif and directed the respondent to be put back into possession.

2. It seems to me that the order of the Subordinate Judge cannot be supported. There can be no doubt that in a mortgage suit lis pendens continues up to the date when either foreclosure takes place or the property is sold and the mortgage-decree is satisfied. A clear authority was cited before the Subordinate Judge in support of this, namely, the ruling in Madheswar Singh v. Mohamaya Prasad Singh [1911] 13 C.L.J. 487 where the learned Judges Mookerjee and Teunon, JJ., say at page 674 : [15 C.W.N.] 'In fact it is well-settled that for the purposes of the application of the doctrine of lis pendens, a mortgage suit continues after the decree till the sale has become final,' and for this position the learned Judges cite several authorities. But the Subordinate Judge by a curious process of reasoning, came to the conclusion that the word 'sale' in the above observation was a mistake for the word 'same.' It does not seem to be anything of the sort. The word 'sale' is the correct word as is quite apparent from the observations of the learned Judges following the one above referred to. The Calcutta view is in accordance with the view of our own High Court : Kunhi Umah v. Amed [1891] 14 Mad. 491 and the cases cited there. The Subordinate Judge has referred to Bhoje Mahadev Parab v. Gongabai Vtthal Naik [1913] 37 Bom. 621 as justifying his view that the lis pendens comes to an end in a mortgage suit when the final decree is passed. No doubt the Bombay High Court seems to have held that view in that case. That, however, was a case in which a charge for maintenance on certain properties was declared and Batchelor, J., one of the Judges who decided the case, seems to indicate that in his opinion there is a difference between a decree like the one before him declaiming a charge for maintenance and a decree for sale of the property mortgaged. However this may be, the view taken by the Bombay High Court seems to be that in mortgage suits lis pendens will come to an end on the passing of the final decree. There are, no doubt, observations to that effect in the judgment. That case, however, has not been accepted as good law in this High Court. The question was discussed at some length by Sesbagiri Iyer, J., in the case reported as Ramasami Aiyangar v. Govinda Iyer [1917] 31 M.L.J. 839. See the observations at page 514 [20 M.L.T.]. The learned Judge has collected the authorities on the question and has shown that the correct view is that the lis continues up to the end of the sale. This view is in accordance with the view of the Calcutta High Court and also of the Allahabad High Court. The view taken by the Bombay High Court was not followed in that case and, as the reasons are fully stated there for the dissent, it is not necessary for me to go into the reasons once again. Although the case in Ramasami Aiyangar v. Govinda Iyer [1917] 31 M.L.J. 839 was a case of lease granted after the mortgage decree had been passed, the principles stated therein will apply equally well to a case where there is a subsequent sale in auction by a Court of the mortgagor's interest under the mortgage-decree. If we do not hold that the lis continues till the decree is executed it would lead to the extraordinary result that, after decree the mortgagor would be able to alienate the property mortgaged and prevent the effective execution of the mortgage-decree by sale of the property. The authority relied on by the Subordinate Judge not having been followed in this Court cannot be taken as a proper authority to support his view.

3. The case may be put on another footing as well and perhaps more accurately. The mortgage decree having been passed in this case, perhaps it is unnecessary to rely upon the doctrine of lis pendens to make the proceedings in execution of the decree binding upon the respondent who subsequently purchased the judgment-debtor's rights. There can hardly be any doubt, as the Subordinate Judge has held that the respondent, as the purchaser of the judgment-debtor's right in execution of the money-decree, is the representative in interest of the judgment-debtor. As his purchase was subsequent to the mortgage-decree he must be held to be bound by that decree. The execution proceedings carried on against the mortgaged property, therefore, will be binding upon him; and any rights that he may have acquired by his purchase will be affected by the subsequent sale in execution of the mortgage-decree. In fact, as the learned Vakil who appeared for the respondent argued, it would have been open to his client to have exercised all the rights of the mortgagor-judgment-debtor; that is, if he was so minded, he could have paid the amount to save the property from being sold, or after the sale of the property itself, if he found the money necessary to set aside the sale, he might have got the sale set aside. Unfortunately he did not take any of these steps and the sale was confirmed and, sale certificate was issued to the appellant. In these circumstances, it is quite clear whether we apply the doctrine of lis pendens or whether we hold that be was bound by the proceedings taken in execution of the mortgage-decree, the right which the respondent has obtained by his purchase is now gone. He cannot now be allowed as the Subordinate Judge has allowed him, to pay off the mortgage-decree, or to recover possession.

4. In the view I take, the appeal must be allowed, the order of the Subordinate Judge set aside and that of the District Munsif restored with costs in this and the lower appellate Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //