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Gobind Chunder Roy Vs. Guru Churn Kurmokar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal94
AppellantGobind Chunder Roy
RespondentGuru Churn Kurmokar
Cases ReferredKally Dass Mookerjee v. Sheik Arshad Appeals
Excerpt:
lis pendens - auction purchaser bound by lis pendens. - .....decree of the court of first instance, and gave judgment in favour of the present defendant. the present suit is by the plaintiff, as auction-purchaser of the right, title and interest of pran gour, against the defendant for ejectment: and the question that was raised in the courts below was whether the doctrine of lis pendens was applicable to this case. the lower appellate court has held that it is applicable, and has accordingly dismissed the suit. for the appellant it has been contended by dr. rasbbehari ghose that the doctrine of lis pendens does not apply to this case: first, because the sale at which the present plaintiff purchased was a sale by a court in execution of a decree, and not a voluntary sale by the judgment-debtor; and, second, because the decree of the court of.....
Judgment:

Ghose, J.

1. The facts out of which this appeal arises are shortly as follow: The present defendant brought a suit in the year 1832 against one Pran Gour for the recovery of possession of certain lands. Pending the suit in the Court of first instance, the right, title and interest of Pran Gour were sold in execution of a decree passed against him, and were purchased by the present plaintiff on the 20th of June 1882. Subsequently to this, that is, on the 13th December 1882, the abovementioned suit against Pran Gour was dismissed by the Court of first instance. The present defendant thereupon appealed. The purchaser at the execution sale, namely, the present plaintiff, was not made a party to the appeal; but there is no evidence to show that the defendant knew of the plaintiff's purchase. On the 26th of September 1883 the appellate Court reversed the decree of the Court of first instance, and gave judgment in favour of the present defendant. The present suit is by the plaintiff, as auction-purchaser of the right, title and interest of Pran Gour, against the defendant for ejectment: and the question that was raised in the Courts below was whether the doctrine of lis pendens was applicable to this case. The lower appellate Court has held that it is applicable, and has accordingly dismissed the suit. For the appellant it has been contended by Dr. Rasbbehari Ghose that the doctrine of lis pendens does not apply to this case: first, because the sale at which the present plaintiff purchased was a sale by a Court in execution of a decree, and not a voluntary sale by the judgment-debtor; and, second, because the decree of the Court of first instance, passed in the previous suit on the 13th of December 1882, was to all intents and purposes a final decree in the said suit until it was reversed on appeal; and as the plaintiff was not made a party to the appeal preferred by the defendant against that decree, it ought to be taken that the decree now relied upon by the defendant, viz., the decree of the appellate Court, is not binding on the plaintiff.

2. As to the first branch of this argument it appears to us that, so far as the decisions of this Court are concerned, it has almost invariably been held that the doctrine of lis pendens does apply even to the case of an auction-purchaser; and we do not see any reason to differ from those decisions. The learned vakeel for the appellant has, however, very strongly relied upon the decision of the Privy Council in the case of Anundo Moyee Dossee v. Dhonendro Chunder Mookerjee 14 M.I.A. 101 : 8 B.L.R. 122 : 16 W.R.P.C. 19; and he has contended that the observations made by the Judicial Committee in their decision indicate that in a case like the present the doctrine of lis pendens cannot, and ought not, to apply. It will, however, be observed, upon a consideration of that case, that the facts upon which the observations relied upon by Dr. Rashbehari Ghose were made were wholly different from the facts of the case which we have now to deal with; and it seems to me that their Lordships of the Privy Council were in no way called upon to express, nor did they express, any opinion whatever on that occasion upon the question with which we are now concerned, On turning to the report of the case as is given in Moore's Indian Appeals, it would appear that a decree for sale was passed by the Supreme Court at Calcutta upon a mortgage deed by which certain properties in the mofussil were mortgaged ; that in execution of this decree the said properties were sold, and the plaintiff became the purchaser. While the suit in which the said decree was passed was pending, in execution of another decree against the mortgagor, which was a money decree, his right, title and interest in those properties were sold and were purchased by the defendant; and the question that came up before the Judicial Committee was a question that was raised between these two purchasers. It was contended before the Judicial Committee that the sale to the plaintiffs was a sale in a suit for foreclosure of a mortgage, and that the suit for foreclosure having been instituted prior to the sale at which the defendant made his purchase, the latter was bound by the decree for foreclosure in exactly the same manner as if he were a party to the foreclosure suit. With reference to this contention, their Lordships of the Privy Council say: 'There is no foundation whatever for the claim so put, that the ease to which they have been referred-The Bishop of Winchester v. Paine 11 Ves. 194-has really no relation to any case of this kind. That case merely determines this-that where there is a suit for foreclosure, and the mortgagor, a defendant to that suit, makes a voluntary alienation, pending the suit, of any part of his interest in the equity of redemption, a purchaser will not be allowed afterwards to institute a new suit for a new foreclosure, the ground being that, if that were permitted, proceedings in a foreclosure suit would be endless, because every day a fresh alienation might be made in some parts of the proceedings. But that was simply a foreclosure suit and the subsequent mortgagee would be barred from instituting any new suit in the Court of Chancery for the purpose of enforcing the equity of redemption. But no suit of foreclosure ever proceeded actively, or ever was made to work actively, against a party who was not before the Court. That case simply decides that subsequent mortgagees of an equity of redemption are bound by a foreclosure suit. This, however, was not a foreclosure decree. It was a decree for sale, and a decree for sale made in the Supreme Court at Calcutta had no effect whatever in rem, as it had no effect whatever over the property in the mofussil. The decree for sale was merely a decree in substance that the parties to the suit should concur in conveying and selling the property to a purchaser, and no such decree for sale could have any operation whatever upon the title of persons in the mofussil who were no parties to the suit. Therefore it appears to their Lordships that the view of the case presented to them based upon the case of The Bishop of Winchester v. Paine, has really no application to the subject-matter of this suit.'

3. Reading these observations by the light of the facts of the case, it appears to me that they have really no application whatever to the question we are now called upon to determine, that question being whether the doctrine of lis pendens applies to the present plaintiff, who, according to the contention of the present defendant, made his purchase during the pendency of the suit, in the course of which the decree, awarding possession of the lands to the defendant, was eventually made. The view that we now take, namely, that the doctrine of lis pendens does apply, has been taken, as I have already said, in several cases in this Court, that is, in the cases of Raj Kishen Mookerjee v. Radha Madhub Holdar 21 W.R. 349; Jharoo v. Raj Chunder Dass 12 C. 299; and a recent case, namely, Kally Dass Mookerjee v. Sheik Arshad Appeals from Appeallate Decrees No. 54 to 57 of 1886, unreported decided on the 7th December 1886, by the present Chief Justice and Mr. Justice Beverley. We think we ought to follow these rulings, and hold that the doctrine of lis pendens does apply to an auction-purchaser such as the plaintiff is.

4. As to the second branch of the argument pressed before us, we had at first some doubts, but after hearing the respondent's vakeel we think we ought to hold that the appellant must fail. The decree passed in the suit was the final decree pronounced on the 20th of September 1883. The proceedings in the appellate Court were but a continuation of the proceedings in the suit, and although for a time there was a decree in favour of the present plaintiff's predecessor in title, yet that was a decree which was open to appeal, and the decree having been appealed against, we ought to take it that the decree of the appellate Court was the decree in the suit, and the sale at which the plaintiff purchased having taken place pending the suit in which that decree was pronounced, we think that the doctrine of lis pendens does apply to the case.

5. The result is that this appeal must be dismissed with costs.


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