Ghose and Pargiter, JJ.
1. This is an appeal by the defendant No. 7, Upendra Chandra Singh, one of the several defendants An a suit brought by the plaintiffs Mohri Lal Marwari and others for the purpose of enforcing a mortgage security bearing date 17th September 1886, executed by two individuals Mobarak Ali and Ashraf Ali. By this mortgage bond, 4 properties, or rather shares therein, were mortgaged to the plaintiffs. We are not concerned in this appeal with the properties Nos. 3 and 4. As to property No. 1, what was mortgaged to the plaintiffs was a 2-anna share therein, and, as to property No. 2 five-anna and odd gunda share. It appears that the defendant No. 7 Upendra Chandra Singh had two mortgages executed to him by the same mortgagors in respect of property No. 1, one dated the 21st August, 1882, and the other the 28th August? 1884. Under these two mortgages a 2 1/2-anna share and a 3 1/2-anna share respectively, in the said property, were hypothecated upon these two documents, two ex-parte decrees seem to have been obtained by defendant No. 7 against the mortgagors, or their representatives on the 24th September 1886; and in execution of one of those two decrees, the property No. 1 was sold, and purchased by himself on the 20th June 1887, and possession was taken by him on the 1st September of the same year. It was, we may here mention, during the pendency of these two suits brought by the defendant No. 7, Upendra Chandra Singh, that the plaintiffs' mortgage was executed, but the plaintiff were not made parties to those suits, and the question arises in this appeal, whether the doctrine of his pendens applies to them, or in other words, whether the decrees obtained in those suits are binding upon them. The property No. 2 was sold for arrears of Government revenue in the year 1889. A certain amount was hit in the hands of the Collector as surplus sale-proceeds of that property, and a certain amount was withdrawn by the defendant No. 7, and this he did in execution of a decree or order which he had obtained under Section 90 of the Transfer of Property Act after the sale of the mortgaged property, to which we have already referred.
2. The Subordinate Judge has held that the plaintiffs are not bound by the decrees obtained by the defendant No. 7 on the 24th September 1886, and by the sale which took place in execution thereof, and that therefore the plaintiffs are entitled to redeem defendant No. 7, and, further, that the latter is bound to account for all that he had received during the period of his possession of property No. 1. And as to the surplus sale-proceeds withdrawn by the said defendant No. 7 he was of opinion that it represented property No. 2 itself, and that the defendant No. 7; Upendra phandra Singh, was bound to make good to the plaintiff? the amount which he thus withdrew in respect of the share of the property mortgaged to them. He accordingly directed an account to be prepared showing what was actually due to the defendant No. 7. An account was accordingly prepared; and the Subordinate Judge has passed a decree in favour of the plaintiffs declaring that on payment of the amount shown in the said account as due to the defendant No. 7, the plaintiffs would be entitled to redeem him.
3. The defendant No. 7 has appealed against this decree, and various objections have been raised before us against the judgment and decree of the Subordinate Judge, which we shall presently deal with.
4. The first point that has been raised before us is limitation. It will be remembered that the mortgage-bond, under which the plaintiffs claim, bears date the 17th September 1886. It stipulated that the amount borrowed would be paid within six months; and a question has been raised before us as to the date from which the period of six months is to run; the contention on behalf of the appellant being that it should run from the date of the bond itself, and that, therefore, the suit instituted on the 17th March 1899 is barred by the twelve years' rule of imitation. We are, however, of a different opinion, we think that, in reckoning the period of six months, the date on which the bono was executed must be excluded, and that being so, the limitation should run from the expiry of the six months mentioned in the bond, i.e., it should run from the 17th March 1887; and the suit being instituted on the 17th March 1889 would be just within time.
5. Another question of limitation has been raised before us with reference to the surplus sale-proceeds of property No. 2. The contention on behalf of the appellant is that the limitation applicable to the claim in respect of the said surplus sale-proceeds is that which is provided by Article 120 of the Limitation Act, and the suit having been instituted after six years from the date of the withdrawal of the money by the defendant No. 7, is barred, by limitation. We are, however, unable to accept this contention as correct. The surplus sale-proceeds represented the property itself, which, was mortgaged to the plaintiffs, and the plaintiffs being entitled to enforce their charge against the said surplus sale-proceeds, as representing the property No. 2, the article of the Limitation Act truly applicable is 132, which provides for 12 years limitation, and, therefore, it is clear that the claim is not barred by limitation. If authority upon this matter is needed, we need only refer to the case of Kamala Kant Sen v. Abul Barkat (1899) I.L.R. 27 Calc. 180.
6. The next question, that has been raised before us is whether, having regard to the two suits instituted by the defendant No. 7 for enforcement of his mortgage securities, and the decrees made therein, the doctrine of lis pendens is not applicable, and the plaintiffs are not bound by those decrees.
7. The doctrine of lis pendens is contained in Section 52 of the Transfer of Property Act, which runs thus: 'During the active prosecution in any Court hating authority in British India, or established beyond the limits of British India by the Governor-General in Council, if a contentious suit or proceeding in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.' The section speaks of a 'contentious suit,' and says that, in order to make the doctrine 'applicable, there must be an active prosecution of such, a suit. The section does not say 'a suit,' but a 'contentious suit,' so that the rule of law laid down in the section is not applicable to any suit, if there is only an active prosecution thereof. And it will be observed that the section says that the suit must be one 'in which any right to immoveable property is directly and specifically in question,' and what we have to consider in this case with reference to the suits upon which defendant No. 7 relies is, whether those suits were of the character indicated in the said Section 52. Referring to the proceedings in the said suits, we may say that there was an active prose action thereof, nut the question is whether the suits were' contentious' and in which any right to immoveable property was directly and specifically in question.
8. As bearing upon the meaning of the words 'contentious suits' several cases have been cited before us in the course of the argument, notably the eases of Uadhasyam Mohapattra v. Sibu Panda (1886) I.L.R. 15 Calc. 647, Jogendra Chunder Ghose v. Falkumari Dassi (1898) I.L.R. 27 Calc. 77, and Krishna Kamini Debi v. Dino Mony Chowdhurani See ante, p. 658 recently decided by Prinsep and Harington JJ. We do not propose to examine these oases in detail; but we may say that some of these oases lay down, in our opinion, rather a wide interpretation of the words 'contentious suit.' What we think may be gathered from these cases, however, is that to constitute a suit 'contentious,' it must he a suit, which upon the face of the proceedings would appear to involve some contention as to the right of one or other of the parties in the immoveable property, which is claimed in the suit, and whether there is such a contention may be gathered from the plaint itself, or the defence of the defendant, when it is put in. We think, upon consideration, that we may -well accept the rule of law, which we have just indicated; and applying this rule of law to the present case, we find that the suits brought by defendant No. 7 were simply for the purpose of recovering the monies due upon the mortgage bonds by sale of the immoveable properties mortgaged therein. No question as to the right of any of the parties seems to have been involved or suggested in the plaint. The defendants were summoned to appear. Summonses seem to have been served, but the exact date of such service does not appear upon the record. But as a matter of fact, the defendant did not appear, and contest the claim; and a decree ex-part was given against them on the 24th September 1886. It was, as we have already mentioned, during the pendency of these suits that the plaintiffs' mortgage of the 17th September was executed. Under these circumstances, we are unable to say that the suits instituted by defendant No. 7 in 1886 were 'contentious' within the meaning of Section 52 of the Transfer of Property Act, and it follows from this that the doctrine of lis pendens does not apply and that the plaintiffs are not bound by the decrees obtained in those suits, they being no parties thereto, and that they being regarded as second mortgagees in respect of property No. 1 mortgaged to them are entitled to redeem the defendant No. 7.
9. The next question raised before us is as to the amount actually due to the defendant No. 7 upon his two mortgages, and as to the accounting by him of what he received during the period of his possession of property No, 1, As involved in this question, a subsidiary question has been raised before us which is, whether the defendant No. 7 is entitled to credit for all the three earlier mortgages said to have been executed by the mortgagors in favour of one Bysakhi Lal. These three mortgages bear dates the 30th January 1880, 2nd November 1881, and 31st July 1882. The defendant's case is that he paid off all these mortgages on the 1st February 1892 and the amount that he paid to Bysakhi Lal upon that occasion was Rs. 18,000.
10. The Subordinate Judge has allowed the defendant No. 7 credit in respect of the last mentioned bond, which was for Rs. 3,701; but the appellant before us has contended that he is entitled to credit for all these three bonds. It has been argued that upon the evidence on the record we should hold that defendant No. 7 actually paid the sum of Rs. 18,000 and got, as it were, a transfer of all these three mortgage-securities to him on the date mentioned. It has further been contended that, even if it be held that he did not pay any value to Basakhi Lal for the assignment in question, still he would be entitled to recover, the amount covered by these securities as against the plaintiffs. It is, indeed, true that defendant No. 7 has produced all the three mortgage securities, with endorsements, purporting to have been made on the back thereof, by Bysakhi Lal. It does not, however, appear on therefore of these endorsements, whether the defendant paid, and, of so, how much, for the assignment said to have been made to him by Bysakki Lal. We have carefully considered the evidence upon the record is bearing upon this matter and it seems to us rather doubtful, upon the evidence, such as it is, whether the defendant paid any consideration to Bysakhi Lal for the bonds in question. But so far as the mortgage bond of the 21st July 1882 is concerned, we are not called upon to express any opinion as to whether the transfer of that document was made to the defendant for any consideration, for as already indicated, the Subordinate Judge has given the defendant credit in respect of the amount covered thereby, and no cross appeal has been raised or pressed before us in respect of the amount covered by that security-bond. But as regards the other two bonds, we are unable to disagree with the Court below in the conclusion at which, it has arrived; and we think that, if no consideration passed from the defendant to Bysakhi Lal for the so-called assignment of the two other security bonds to him, it would be difficult to hold that there was a bond fide assignment thereof to the defendant, such as would entitle him to insist that the plaintiffs should pay the whole of the amounts covered thereby before they would be entitled to redeem from him. For these reasons we are unable to give effect to the contention that has been raised before us in respect of this matter.
11. The next question that has been raised before us is as to certain sums of money paid by the defendant No. 7, after his purchase of the mortgaged property No. 1 in execution of his mortgage decrees, as Batwara expenses. It appears that at the time when he made this purchase a Batwara of this Estate (property No. 1) was pending, and he was called upon from time to time as a co-shares of the estate, to pay in certain monies as Batwara expenses. He claimed credit for the amounts thus paid by him. The Subordinate Judge, however, was of opinion that laying regard to the evidence of the defendant himself, he could not claim any credit for these sums of money. What Upendra Chandra Singh says, if we read his evidence correctly, is that the assets of the property amounted to something like Rs. 9,000 and, after all the outgoings, the net profits amounted to something like Rs. 5,000. And the Subordinate Judge, proceeding upon this evidence, has held that he must account, upon footing that he received this net sum of Rs. 5,000 year after year and that the outgoings should be taken to include the Batwara expenses. We are, however, unable to agree with him in this respect. We think that the judgment of the Subordinate Judge proceeds upon a misconception of Upendra Chandra Singh's evidence, and we axe of opinion that he is entitled to get credit in respect of all the sums of money that he paid from time to time in the shape of Batwara expenses. So far, therefore, as this matter is concerned, we hold that the defendant No. 7 is right in his contention.
12. The next matter that has been raised before us is as regards the sum of Rs. 728, which the Court below has held, must be deducted from the defendants' claim, that being the amount which he is said to have withdrawn from the Collectorate after the sale of property No. 2. Referring to the plaint itself it would appear that the whole amount withdrawn by the defendant No. 7 was Rs. 1,057-12-5. It is rather difficult to find upon what basis of calculation the Court below held that the defendant is accountable to the plaintiffs in the sum of Rs. 728. The only ground stated in his judgment is that the plaintiff's case was that their mortgagors were entitled to a third share of the property No. 2, whereas they were entitled to only a fourth share. But that would not show that the amount for which the defendant is bound to account is Rs. 728. However, that may be, looking at the account as given at the foot of the plaint, it would appear that what the plaintiffs alleged was drawn by defendant No. 7 in respect of the share of the property No. 2 mortgaged to him is Rs. 352-9-6; and prime facie the plaintiffs are entitled to no more than the said amount of money. The learned vakil for the respondent has been unable to show us that the respondents are entitled to anything more, and we therefore hold that the defendant should not be held responsible to the plaintiffs for any larger sum than the said amount of Rs. 352-9-6 With interest thereon in the mode calculated by the Subordinate Judge.
13. There were two or three other matters mentioned to us in the course of the argument as bearing upon the principle on which the account was prepared by the Subordinate Judge, but, on consideration, we all of opinion, that, even if we are to give effect to some of the contentions raises by the learned vakil for the appellant, it would not make any substantial difference in the result. Upon these grounds, we think, that so far as the principle upon which the account has been prepared, no just exception can be taken. The result is that the decree of the Court below is affirmed, save and except the two matters to which we have already referred. The decree of the Court below will be modified accordingly.