1. This is an appeal from the decree of Mr. Worgan, the District Judge of Cuttack, who has reversed the decree of the Munsif.
2. The facts of the case are shortly these: The plaintiff brought a suit' to recover possession of certain pieces of land, and the title under which he claimed was based upon a conveyance from the defendant No. 2, dated the 5th of October 1883. This conveyance was registered. The defendant No. 1, who was in possession of the land, also claimed to hold if under a conveyance from the defendant No. 2. This conveyance was dated the 9th of September 1883, and was unregistered. The defendant No. 1 alleged that he purchased for a sum of Rs. 99-12; the plaintiff alleged that he purchased for Rs. 198-8. Prima facie, therefore, the plaintiff's conveyance, being a registered document, would prevail over the conveyance of the defendant No. 1, which was unregistered.
3. The defendant sought to defeat the plaintiff's stronger title based upon the registered conveyance by taking advantage of the doctrine of lis pendens ; and the lis pendens upon which he relied arose as follows: He alleged that on the 29th of September 1883 be brought an action against the defendant No. 2, his vendor, to recover possession of the property which he alleged be purchased for Rs. 99-12 on the 9th September previously. The summons in that suit as a matter of fact, was not served upon the defendant No. 2 until a date subsequent to the date of the present plaintiff's conveyance, that is to say, subsequent to the 5th October 1883. The defendant No. 1 obtained judgment in that suit against the defendant No. 2 on the 15th of January 1884. As a matter of fact the defendant No. 2 did not appear to defend the suit. She put in a written statement in which she alleged that she had parted with all her interest in the property to the plaintiff in this suit by virtue of the conveyance to him of the 5th October 1883, and she asked that he might be made a party to that suit. He was not, as a matter of fact, made a party to that suit ; and, as I have said, judgment was given against the defendant No. 2, who did not appear to defend the suit. This is the lis pendens which the defendant No. 1 seeks to take advantage of.
4. The Munsif found that the doctrine of lis pendens did not apply. The District Judge has overruled that decision, and has held that the doctrine of lis pendens does apply.
5. We are of opinion that the decision of the District Judge is erroneous, and it is sufficient for us to state only one reason, which is shortly this: As a matter of fact at the date of the plaintiff's conveyance, that is, the 5th October 1883, there was no lis pendens. Section 52 of the Transfer of Property Act, which deals with the question of lis pendens, says: 'During the, active prosecution in any Court having authority in British India, or established beyond the limits of British India by the Governor-General in Council, of a contentious suit or proceeding in which any right to irnmove able 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.' As a matter of fact there was no contentious suit or proceeding in existence until the summons to the suit brought by the defendant No. 1 against the defendant No. 2 was served. Upon this short ground, without entering into the other points argued by Dr. Rash Behari Ghose for the appellant, points upon which it is not necessary to express any opinion, we think this appeal should be allowed.
6. It has been urged by Baboo Dmbica Churn Bose on behalf of the respondent that there is a finding by the District Judge to the effect that the plaintiff had knowledge of the suit. We fail to see any finding that the plaintiff on or before the 5th of October 1883, had notice of the suit, or that, on or before the 5th October 1883, ha had notice of the previous conveyance of the 9th of September 1883.
7. Upon these grounds we allow the appeal, set aside the decree of the lower Appellate Court, and restore that of the first Court with costs to the plaintiff throughout.