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Lala Kali Prosad Vs. Buli Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal790
AppellantLala Kali Prosad
RespondentBuli Singh
Cases ReferredRaj Kissen Mookerjee v. Radha Madhub Haldar
Excerpt:
purchaser pendente lite - subsequent decree by mortgagee--misdescription of property. - .....respondent, purchased the property, or rather the right and interest in it of his debtor, at a sale in execution of his own decree on the 7th of september 1874. at that time there was pending in the same court a suit against the same debtor brought by his mortgagee to recover a debt secured by the mortgage of property, which included that now in dispute; and on the 17th of september a decree was passed in that suit ordering the amount to be recovered by the sale of the property. it seems clear that the defendant having on the 7th bought the mortgagor's right and interest pendente lite, acquired nothing more than the equity of redemption, and did not acquire the land free of the incumbrance created by the debtor. if authority be required for holding that a purchaser under such.....
Judgment:

Tottenham, J.

1. In this appeal there were two points for decision, 1st whether or not the doctrine of lis pendens applies to the case; and 2ndly, if it does apply, whether the defendant can escape the effect of it on the plea that he had notice of the proceedings taken in execution of the decree obtained by the mortgagee of the property in which the subject of the present dispute is included. The lower Appellate Court held, that the doctrine of lis pendens did not apply. We are of opinion that in so holding the District Judge was in error. The defendant, respondent, purchased the property, or rather the right and interest in it of his debtor, at a sale in execution of his own decree on the 7th of September 1874. At that time there was pending in the same Court a suit against the same debtor brought by his mortgagee to recover a debt secured by the mortgage of property, which included that now in dispute; and on the 17th of September a decree was passed in that suit ordering the amount to be recovered by the sale of the property. It seems clear that the defendant having on the 7th bought the mortgagor's right and interest pendente lite, acquired nothing more than the equity of redemption, and did not acquire the land free of the incumbrance created by the debtor. If authority be required for holding that a purchaser under such circumstances is bound by lis pendens, we would refer only to the ruling of the late Chief Justice of this Court, Sir R. Couch, in the case of Raj Kissen Mookerjee v. Radha Madhub Haldar (21 W.R., 349), in which decision we concur.

2. The other question is as to the defendant's being entitled to notice of the proceedings in execution of the decree establishing the mortgage lien. It has been argued that as he was not made a party to those proceedings, they cannot operate to his prejudice. But we find that the defendant by his own conduct made it impossible for the mortgagee, decree-holder, to be aware that he claimed any interest whatever in the mortgaged property. For the defendant in execution of his own decree caused the attachment and sale of the premises, which he has purchased at the sale, describing them as lakhiraj property. Now there was no lakhiraj property included in the mortgage, and it is now admitted that this was a misdescription. This misdescription was quite sufficient to relieve the mortgagee, decree-holder, of the obligation, if any had existed, of giving the present defendant notice of his proceedings in execution.

3. We are, therefore, of opinion that defendant has no right to maintain possession as against the plaintiff, whose title is derived from the sale held in accordance with the decree obtained by the mortgagee.

4. The judgments of the lower Courts must be reversed, and the appellant will have a decree for possession with all costs and interest at six per cent.


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