1. This appeal is by the plaintiff in a snit for recovery of possession on a declaration of the plaintiff's title to the suit land. The disputed land belonged to defendant 1 as appertaining to his jote bearing a rent of Rs. 19-2-0. He mortgaged the suit land to one Jeotram Goala on 32nd Jaistha 1338 B.S. Thereafter on 21st Baisakh 1334 B.S., he again mortgaged it to one Mathur Lai Ram. Both these were simple mortgages and the mortgagor retained the possession of the mortgaged properties. Jeotram Goala, the first mortgagee, sold his mortgage interest to one Amolak Chand Oswal in the benami of one Jugraj. Both the mortgagees instituted suits in enforcement of their respective mortgages in 1932. There is no definite evidence on the record to show the dates of institution of these suits. Both the suits wera instituted in the first Court of Munsif, Gaibandha. The mortgage suit by Mathur Lai, the second mortgagee, was Suit No. 465 of 1932 and the one by Amolak Chand Oswal, the first mortgagee, was Suit No. 605 of 1932. The second mortgagee in his Suit No. 465 of 1932 made the first mortgagee a party defendant. The first mortgagee, however, in his Suit No. 605 of 1932 did not join the second mortgagee as a party.
2. In the suit on the first mortgage, (i.e. Suit No. 605 of 1932) the preliminary mort-gage decree was made on compromise on 10th December 1932 (Ex. F). This decree was ultimately made final and the mortgage property was sold in execution of that decree on 6th November 1933. The decree-holder himself purchased the property at the auction are took delivery of possession on 30th June 1934. He then settled four cottas out of the suit lands with Akali Mudiani, defendant 2, wife of defendant 1 the original mortgagor, on 3rd August 1934 (Ex. A). In the meantime, in the suit on the second mortgage (i.e. Suit No. 465 of 1932), a preliminary mortgage decree was made after contest on 14th June 1933 (Ex. 3). This preliminary decree was sold by the decree-holder to the present plaintiff Juman on 10th January 1935 (EX. 1). The present plaintiff then obtained the final decree on 28th August 1935, after much contest up to the appellate Court (Ex. 7). The mortgage property was sold in execution of this final decree on 8th April 1936, and at this sale the plaintiff himself purchased the property. He took delivery of possession through Court on 17th November 1936. Having failed to get the actual possession, he instituted the present suit for recovery of possession on 4th August 1939. In the present suit, the original mortgagor is defendant 1, his wife who took settlement of four cottas out of the suit lands from the first mortgagee purchaser is defendant 2, the successors-in-interest of the purchaser in execution of the decree on the first mortgage are defendants 3 to 7. During the pendency of this suit in the Court of first instance, defendants 3 to 7 entered into a compromise with the plaintiff whereby they admitted the preferential title of the plaintiff and admitted that they did not acquire any title to the land in suit on the basis of their purchase in preference to the title of the plaintiff.
3. This compromise was recorded by the Court of first instance and the plaintiff's suit was decreed as against defendants 3 to 7 in terms of this compromise. Defendant 1 did not appear and contest the claim of the plaintiff. The suit was decreed against him ex parte. Defendant 2 alone contests the claim of the plaintiff. The learned Munsif decreed the plaintiff's suit against defendant 2 also on contest on the following findings : j l. That the bond in favour of Jeotram Goala (first mortgagee) had been satisfied long before the suit on it (Suit No. 605 of 1932). 2. That defendant 1 procured a bogus transfer of the said mortgage in the name of Jugraj and that all that followed after that bogus transaction were the acts of defendant 1 to defraud the plaintiff. 3. That defendants 3 to 6 or Jugraj did not acquire any valid title to the land in suit and rightly enough they did not claim such title against the plaintiff. 4. That defendant 1 got settlement of the land in the name of defendant 2, his wife under a kabuliyat (Ex. A) : That defendant 2 is not a bona fide tenant for consideration in respect of the land in suit : Her kabuliyat is also inoperative under the doctrine of lis pendens. On appeal by defendant 2, the learned District Judge allowed the appeal in part and modified the decree of the learned Munsif by maintaining the possession of defendant 2 as a tenant under the plaintiff. The learned District Judge found : 1. That the kabuliyat (EX. A) was not a collusive or fraudulent kabuliyat but represented a settlement) granted by the Oawals to the contesting defendant for valuable consideration. 2. That the transactions on which the title of the Oswals was based were not fraudulent and collusive, but were genuine transactions, (a) that there was no material justifying the findings of the learned Munsif that the first mortgage bond had been satisfied, that the satisfied mortgage bond had been sold collusively to Jugraj Oswal and that the mortgage decree thereon was obtained by the Oswals collusively; (b) that Jugraj was benamdar of defendants 3 to 6 and that defendants 8 to 6 exercised possession in their own name before they granted lease to defendant 2. 3. That a second mortgagee, who is not made a' party to the first mortgagee's suit, has only the right to redeem the first mortgage and then after redeeming the first mortgage to have the property sold : If he has the propetty sold without first redeeming the prior mortgagee he cannot get a better title as against the prior mortgagee in possession. 4. That the principle of lis pendens would not apply to the present case : (a) as no relief was claimed in the suit on the puisne mortgage against the prior mortgagee by way of redemption, and (b) as the prior mortgagees were unnecessary parties to the suit on the puisne mortgage.
4. The only question that arises for consideration in the appeal before me is the question whether or not defendants 3 to 6 obtained a good title to possess the suit land as against the plaintiff when they granted the settlement to defendant 2 and whether or not they were within their powers in granting this lease. As has been stated above, both the mortgages in question were simple mortgages. Consequently, the jus possidendi and the possession itself remained with the mortgagor. The legal relation constituted by the transaction of the first mortgage gave rise to certain rights and liabilities of the parties and certain reliefs in respct of such rights and liabilities. Realisation of the mortgage dues by the sale of the property including the ultimate jus possidendi is one such relief. The purchaser at such a sale will be entitled to the possession of the property. The second mortgage only conferred on the second mortgagee a right to intervene and prevent the sale of the ultimate jus possidendi at the instance of the first mortgagee by paying off the dues on the first mortgage. The second mortgage itself constituted a legal relation between the second mortgagee and the mortgagor and the legal relation gave rise to certain rights and liabilities of the parties and reliefs in respect of such rights and liabilities. Here again, realination of the mortgage dues by the sale of the ultimate jus possidendi was one such relief.
5. Even after the two transactions the ultimate jus possidendi remained with the mortgagor. It was still a property right available to both the mortgagees for the sealisation of their dues by the sale of this jus possidendi. If the second mortgagee realises his dues by the sale of the jus the purchaser gets it subject to the right of the first mortgagee to realise his right by its sale again in the hand of the purchaser. If the first mortgagee realises his dues by the sale of the jus without affording the second mortgagee an opportunity to protect his right, the second mortgagee's right remains unaffected. The purchaser only get the jus subject to the right of the second mortgagee, because that is all that was left with the mortgagor who alone was made party to the first mortgagee's suit. In this particular case the suit in enforcement of the second mortgage (in Title suit No. 465 of 1932) seems to have been instituted first. The ultimate jus possidendi which is certainly a right to immovable property came to be in question directly and specifically in this suit. Mr. Sen, appearing for the appellant, contends that the purchase of the property in execution of the decree obtained in the subsequent suit on the first mortgage to which the second mortgagee t was not made a party would be hit by the doctrine of lis pendens so far as this jus possidendi is concerned. The purchaser would not be entitled to this jus possidendi unless he complied with the terms of the decree made in the pending suit on the second mortgage. In support of this contention, Mr. Sen relies on a Full Bench decision of the Allahabad High Court in Ram Sanehilal v. Janaki Prosad : AIR1931All466 . In the present case the first mortgagee himself purchased the property in execution of his decree. Mr. Sen contends that he, as purchaser of the ultimate jus possidendi without making the second mortgagee a j party to his suit, would be in no better position in respect of this jus than the mortgagor himself. The purchaser at the sale held in execution of the decree on the second mort. gage would therefore be entitled to the possession of the property subject of course to the right of the first mortgagee to realise his dues by the sale of this jus after a properly framed proceeding.
6. Mr. Sen further contends that the lease granted to defendant 2 is equally hit by the doctrine of lis pendens. According to the contentions of Mr. Sen, therefore, the plaintiff in the present suit would be entitled to recover possession of the property. Defendants 3 to 6 did not obtain any better title to possess the suit land as against the plaintiff than the mortgagor himself. As first mortgagees they had no right to possess the land, the mortgage being only a simple mortgage. As purchaser of the jus possidendi, the second mortgagee was not bound by the decree and the sale as he was not made a party to the suit on the first mortgage. In respect of the jus possidendi, therefore, the position of defendants 3 to 6, was that of the mortgagor himself. These defendants having purchased this interest during the pendency of the suit on the second mortgage, were bound by the decree in that suit. Their purchase of the jus possidendi did not affect the right of the second mortgagee under the decree ultimately made in his suit. The lease granted by them to defendant 2 equally failed to affect that right.
7. Mr. Das contends that the first mortgagee himself had a prior right in this jus possidendi and this right was realisable by the ultimate sale of this jus. The fact that the time when he proceeded to realise this right happened to be during the pendency of the second mortgagee's suit would not affect the ultimate realisation of his right. Mr. Das relies on Har Pershad Lal v. Dal Mardan Singh ('05) 32 Cal. 891, Chinna Swami v. Dharmallinga Padayachi ('32) 19 A.I.R. 1932 Mad. 566 and Suramma v. Surayya : AIR1934Mad585 . In Ram Sanehilal v. Janaki Prosad : AIR1931All466 (Sulaiman A.C.J., Mukherji, Benerjee, Young and Pullan JJ.) the first mortgage was dated 6th October 1911 and the second mortgage was dated 17th May 1912. The second mortgage was first sued on and a preliminary decree on it was obtained on 13th March 1923, which was made final on 13th November 1923. The first mortgagee was not impleaded in this suit and Obviously he was not at all a necessary party to the suit. Before the execution of this decree, a suit on the first mortgage was instituted without impleading the second mortgagee, the final decree was obtained in it in due course on 23rd March 1925 and the property was sold in execution of this decree some-time before November 1925 and the purchaser took possession on 20th November 1925. In the meantime, sometime before 23rd March 1925 the decree on the second mortgage had been put in execution and the property covered by that mortgage had been sold. Though this was the prior purchase, the purchaser did not succeed in getting possession. The majority of the Judges of the Full Bench held that the sale in execution of the decree on the first mortgage was affected by the rule of lis pendens. Sulaiman A.C.J., in delivering the judgment, to which the majority of the Judges agreed, observed:
The language of Section 52 has been held to be applicable not only to private transfers but also to court sales held in execution of decrees. Section 2(d) does not make Section 52 inapplicable to Chap. 4 which deals with mortgages, This is now well settled : vide Radhamadhab Holdar v. Monohar Mukherji ('88) 15 Cal. 756. and Moti Lal v. Karrabuldin ('98) 25 Cal. 179.... When a suit under the prior mortgage is pending and the subsequent mortgagee has not been impleaded, the plaintiff is trying to sell the rights and interests of the mortgagor namely, the equity of redemption. He is not selling his own rights as the mortgagee, but by the principle of subrogation the auction purchaser would step into the shoes of the mortgagee also in. addition to his acquiring the proprietary interest of the mortgagor, subject to the subsequent mortgage. Thus, the equity of redemption of the mortgagor is in dispute in such a suit and the doctrine of lis pendens would undoubtedly attach to it. If in another proceeding, whether it be in execution of a simple money decree or in enforcement of a subsequent mortgaga the same proprietary interest of the mortgagor is= simultaneously sought to be sold, Section 52 would apply. Similarly, while a suit of a subsequent mortgagee for the enforcement of his mortgage against the mortigagor, without impleading the prior mortgagee, is pending, any attempt on the part of the prior mortgagee to get that interest sold in his own decree would be equally governed by Section 52.
8. Further on, the learned Chief Justice observed:
It has been suggested that Ha pendens cannot apply to the sale in a subsequent mortgage decree for the reason that the transfer in reality took place at the date of the mortgage and the subsequent auction sale is merely a necessary result of it. If these arguments were sound it would be said that the transfer under the first mortgage took place at the date of that mortgage and the auction purchaser in the prior mortgage suit would always have priority even though his auction sale may be later in point of time. It seems to me that the transfer by the mortgage at the time of its execution was of the mortgagor's rights and was made to the mortgagee. The equity of redemption of the mortgagor was not at all transferred at that time. In the mortgage suit the plaintiff is trying to put up for sale the mortgagor's equity of redemption and not the mortgagee's interest. The auction purchaser would purchase the rights and interest of the defendant mortgagor, although by virtue of the principle of subrogation he would also step into the shoes of mortgagee and acquire his rights as well.... It is not a case of a sale of the mortgagee's interest, but, of the mortgagor's interest free from the mortgage.
9. The learned Chief Justice then came to the conclusion that:
The sales in execution of the decrees on the two mortgages in the parallel suits would both be imperfect and not absolute, each being subject to being avoided by the other mortgagee. This may be a very unsatisfactory state of affairs, but it is the inevitable result of the applicability of Section 52 to both the suits.
10. Mukerji, J., dissented from this view and held that the rule of lis pendens had no application to a case like this. He observed:
Where a transfer takes place not in execution of a simple money decree or by private treaty, but at the instance of a prior or subsequent mortgagee, who is no party to the litigation Section 52 or the principles on which Section 52 is based, has no application whatsoever. The reasons are these. There is no difference in principle between a private sale and a sale held in execution of a simple money decree after attachment. A judgment-debtor has failde to pay while he could pay by Belling his property. The Court seizes the property and sells it for the judgment-debtor for the benefit of the judgment-creditor. There, the only right that passes to the auction purchaser is the right, title and interest of the judgment-debtor alone and none of the decree-holder, who has no interest whatsoever in the property attached and sold. In the case of a sale under a mortgage the transfer has already taken place at the date of the mortgage and what follows, namely, the subsequent sale in execution of the mortgage decree, is nothing but the logical effect of a transfer which took place sometime ago and not during the pendency of the suit by the prior mortgagee.
11. Mookerji J. also observed that the sale in execution of a mortgage decree transfers not only the interest of the mortgagor, but also the interest of the mortgagee himself. In Har Pershad Lal v. Dal Mardan Singh ('05) 32 Cal. 891 during the pendency of a suit on the first mortgage by the first mortgagee the second mortgagee instituted a suit on his second mortgage and purchased the property in execution of the decree obtained in that suit. The suit on the first mortgage was subsequently decreed and in execution of that decree the property was again put to sale and the first mortgagee purchased it at that sale. Each of these suits was without' impleading the other. The first mortgagee on the strength of his purchase in execution of his decree instituted a suit to recover ' possession of the property from the second mortgagee purchaser. In this suit one of the questions raised was whether the purchase by the second mortgagee was affected by the rale of lis pendens. Rampini J. observed:
The rule of lis pendens does not help the plaintiff. At the best the plaintiff can, under the rule of lis pendens, only claim that the sale to the defendants does not destroy his mortgage rights, but it does not help him to enforce his mortgage lien if owing to his own laches the time for doing so was passed.
12. Brett J. on the other hand held that the defendants were bound by the doctrine of lis pendens. He observed:
The property which they brought to sale was in litigation in the prior suit at the time of the suit and of their sale and purchase. It has not been seriously contested that the lis remained up till the conclusion of the execution proceedings, which are in fact part of the proceedings in the suit.... The rulings in Raj Kishen Mookerjee v. Radhamadhab Haldar ('74) 21 W.R. 349, Jharoo v. Rajchunder Das ('86) 12 Cal. 299, Har Shankar Prosad v. Shew Gobind Shaw ('99) 26 Cal. 966, Bunwari Jha v. Ramjee Thakur ('03) 7 C.W.N. 11...fully support the view, that the interest in the property, which the defendants purchased at the sale of 6th December 1895 was subject 40 the result of the suit then pending, which had been brought on the prior mortgage.
13. There having been difference of opinion in this case, it was referred to Mitra J., and so far as the question of the applicability e of lis pendens is concerend the learned Judge held that the rule was not applicable. He observed:
The defendants are not purchasers in ordinary execution. They purchased under a decree for sale on their own mortgage. They took the property in the same condition as is stood at the date of the mortgage to them. Their title, therefore, dated back, Syud Imam Momtazudeen v. Raj Coomar Das ('75) 23 W.R. 187. So did the plaintiff's title as regards the mortgage to his assignor. The title of each relates back to the date of the mortgage under which the claim is made.... If the title of the defendants was created or the devolution of interest in their favour took place during the pendency of the first mortgagee's suit, the doctrine of lia pandens...would have applied. But as the defendants' title related back to a date anterior to the first mortgagee's suit, there was no alienation pendente lite and the doctrine does not apply.
14. Further on the learned Judge observed:
The doctrine of lis pendens which has been applied in this country to sales in invitum as well as voluntary alienations might have application, if the equity of redemption of the mortgagor was capable of being separately dealt with by a mortgagee under a decree for sale on the mortgage. If we can contemplate the sale of the equity of redemption as a separate incident on a decree for sale and a sale thereunder, it might be said that the plaintiff's suit having as its object the foreclosure of the equity of redemption, as it stood on the date of the mortgage, and the subject of his suit being such equity of redemption, the sale at the instance of the defendants of the same equity of redemption during the 5 pendency of the plaintiff's lis is affected by a lis pendens. This might be the utmost limit of the application of the doctrine of lis pendens in the present case. I am not, however, disposed to separate in this country the mortgagee's right to the property and the equity of redemption of the mortgagor, as if they are distinct entities in law, with reference to the same property.
15. With due respect, there seems to have been some confusion here in these observations. The sales are certainly comprehensive enough to include the ultimate equity of redemption or the ultimate jus possidendi. The entire bundle of rights under the decree need not be in competition with the entire bundle of rights under the transfer pendente lite. If some of the rights are in competition, those under the decree shall prevail. It may be noticed that in this suit the first mortgage was dated 5th December 1885. The decree on the first mortgage was obtained on 4th June 1894. In execution of this decree the property was sold on 22nd July 1898. The second mortgage was dated 4th August 1888. The suit on the second mortgage was instituted in 1895 and the decree was obtained on 8th March 1895. In execution of this decree, the property was sold on 6th December 1895 and the purchasers were put in possession on 28th March 1896. The prior mortgagees, when they brought their suit, had no knowledge of the second mortgage. The second mortgagees, however, had full knowledge of the first mortgagee. The suits on these mortgages were under the then Section 85, T.P. Act, which stood thus:
Subject to the provisions of the Code of Civil Procedure, Section 437, all persona having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage, provided that the plaintiff has notice of such interest.
16. It was in some quarters believed that the section made it imperative on a puisne mortgagee to make a prior mortgagee a party to his action, subject of course, to the question of notice. The Calcutta High Court, however, took the view that the prior mortgagee was not a necessary party to such a suit: Kanti Ram v. Kutubuddin ('95) 22 Cal. 33. It would thus appear that in the facts of the case and according to the Calcutta view of the then law, both the suits were properly constituted mortgage suits and consequently it must be said with due deference that Mitra J., was right in saying that what the second mortgagee acquired by his purchase in execution of his decree was not the result of any alienation during the pendency of the first litigation but was only by way of realization of the right in rein created in his favour before the litigation commenced.
17. In Chinna Swami v. Dharmallinga Padayachi ('32) 19 A.I.R. 1932 Mad. 566 (Waller and Pandalai JJ.) the first mortgage was dated 21st July 1905, and the second mortgage was dated 4th November 1905. Both the mortgages were simple mortgages. The suit on the second mortgage was instituted in 1914 without impleading the first mortgagee and the decree for sale was obtained in it. Before the execution of this decree, in 1917, the first mortgagee instituted his suit on the first mortgage, without impleading the second mortgagee, obtained a decree for sale in it and in execution of this decree purchased the property on 21st October 1918. He obtained possession in January 1919. Thereafter the decree on the second mortgage was put in execution and the property was purchased by the plaintiff in the present suit who was the assignee of this decree. As he could not get possession he brought the present suit in 1924. It was contended on behalf of the plaintiff in this suit that the suit on the first mortgage and the sale in execution of the decree in that suit having been after the institution of the suit on the second mortgage and during the pendency of this suit, the defendant's purchase at that sale was not available against) the decree on the second mortgage and the sale in execution of that decree under the rule of lis pendens. In negativing this contention Pandalai J., observed:
I understand by lis pendens the rule by whioh by reason of a suit being pending about the rights to some property, subsequent dealings by the parties with that property so as to prejudicially affect the determination of those rights in that suit are invalidated. The proceedings in earlier instituted suits cannot be affected by lis pendens by suits subsequently instituted. If earlier proceedings are affected or rendered ineffective by subsequent proceedings the reason must be not lis pendens but something else. Not only so, but I find difficulty in understanding how a mortgage suit brought by a mortgagee can be affected by lis pendena because some one else who does not claim from him, i.e., another mortgagee has already sued to enforce his own rights. Both have rights against the same property not derived from each other but from the same owner.
18. The learned Judge then referred to and accepted with approval the view expressed by Mukherji J. in Ram Sanehilal v. Janaki Prosad ('31) 18 : AIR1931All466 . According to this view
the rule only applies to transfers by the plaintiff or defendant of their respective interests after the suit including transfers by court sale in money decrees against either party. But it does not apply to previously existing transfers (including mortgages) or legal proceedings to enforce such transfers by those entitled. On principle the sale in pursuance of a mortgage decree, the mortgage having been executed before the institution of the suit, is not affected by the doctrine of lia pendens.
19. Reliance was placed on the decisions in Har Pershad Lal v. Dal Mardan Singh ('05) 32 Cal. 891 (Per Mitra J.), Har Pershad Lal v. Dal Mardan Singh ('05) 32 Cal. 891 and Abdul Muhammad Rowther v. Seethalakhami Ammal : AIR1931Mad120 In Chinna Swami v. Dharmallinga Padayachi ('32) 19 A.I.R. 1932 Mad. 566 obviously the suit on the first mortgage was not a properly constituted mortgage suit as required by Order 34, Rule 1, Civil P.C. Consequently, though the suit purported to be in enforcement of a right in rem created before the institution of the prior pending suit, and though the decree obtained also purported to be one in realisation of that anterior right in rem, it might be contended that so far as the left-out second mortgagee was concerned, it was no better than a decree for money against the mortgagor and in its execution what could be and was effectively sold was only the then existing right, title and interest of the mortgagor. In Suramma v. Surayya : AIR1934Mad585 (Venkatasubba Rao J.) the suit by the first mortgagee was earlier in date but the earlier purchase was made in the subsequent suit of the puisne mortgagee. This purchase was thus made during the pendency of the suit on the first mortgage. The mortgages were simple mortgages and each suit was without impleading the plaintiff in the other. One of the questions raised was whether the purchase in execution of the decree in the second suit was affected by the rule of lis pendens. Venkatasubba Rao J. observed:
The mortgages being simple, possession remains with the mortgagor and he is the person in law entitled to it. It follows therefore that a sale of his interest in a suit either by a prior or a puisne mortgagee must convey to the purchaser the mortgagor's right to possession, the only question being, in which suit was the earlier sale made. On the date of that sale the mortgagor having the right to possession, that right becomes transferred to the vendee.... The question next arises, is that right affected by the doctrine of lis pendens as the purchase under which he claims, was made during the pendency of the suit brought by the prior mortgagees? I think not. The rights of the second mortgagee are unaffected by the first mortgagee's suit; his right to redeem the prior mortgage remains, so also is his right to sell the equity of redemption preserved.... If a certain right remains unaffected the legal remedy to enforce that right must also continue. No suit therefore can operate as a lis pendens so as to affect the antecedent transfers, i.e., the transfers being unaffected, it follows that the legal proceedings brought to enforce those transfers are likewise immune from the operation of the rule.
20. It may be noticed that a prior mortgagee is not given a right to enforce his right in rem in the absence of a puisne mortgagee. The rule in lis pendens only protects the rights of the successful party to a pending litigation as determined by that litigation from being affected by any title derived from the alleged right of the other party during the pendency of the litigation. It does not and cannot afford any protection from any antecedent right - from any right in rem acquired prior to the litigation. The rule is incorporated in Section 52, T.P. Act. Its essential elements, so far as the present question is concerned, are (1) the scope of the pending litigation, (2) the act of transfer, (3) the authorship of the transfer, (4) the time of the transfer and (5) the extent of the rights of the successful party under the decree. There can be no doubt that a suit on a mortgage satisfies the first requirement of being a suit in which any right to immovable property is directly and specifically in question : Umesh Chunder v. Mt. Zahoor Fatima ('90) 18 Cal. 164. It does not matter how and when this right was created. All that is necessary is that such a right is in question in the suit, the pendency of which is to affect any transfer of the property.
21. The cases noticed above will show how divergent have been the views as to the act of transfer that comes within the field of operation of the rule. The majority of cases has taken this act to be the act creating the right in rem and not the actual act of realization of that right. In order to attach the infirmity in question to the transfer the authorship of the transfer must be ascribable to any other party to the pending suit, When the transfer purports to be of the interest of that other party, this requirement as to its authorship is fulfilled irrespective of the question whether that party himself transfers or whether his interest is taken in execution with the help of a proceeding in Court. The time of the transfer is expressed to be during the pendency of the suit. When a particular transfer enters the field of operation of the rule, it is not necessarily destroyed altogether by the rule. It is only crippled in its own operation and is made to withdraw its potency in so far as the same is hostile to the rights of the other party under the ultimate decree made in the pending suit.
22. A sale held in execution of a decree for sale in a suit on a simple mortgage confers on the purchaser the right to the possession of the property. The question is whether this right to possess is a right of the decree-holder and is a right under the decree. In order to come within the field protected by the rule of lis pendens, it must satisfy this requirement of being a right of the decree-holder and a right under the decree. The decree confers on the mortgagee the right to have the property sold so as to transfer the jus possidendi from its present holder to the purchaser. In my opinion the ultimate transference of the jus is a part of the rights of the mortgagee and is a part of the rights under the decree.
23. When a prior mortgagee brings a suit on his simple mortgage without impleading a puisne mortgagee, he cannot and does not I acquire any right under the decree that he may obtain in that suit which can be hostile to the left-out puisne mortgagee. The rights under the decree in such a suit on the prior mortgage themselves shrink in the presence of any act of realisation of the rights of the puisne mortgagee. No question of protection by lis pendens can therefore arise in such a case. The rule simply protects a certain class of rights. It does not add to the potency of those rights. If the rights are themselves wanting in certain potency the rule of lis pendens shall not fill them with it. When the puisne mortgagee brings the prior suit no infirmity attaches to his suit, because of the prior mortgagee not having been impleaded in it. The rights under the decree entitle him to the transference of the jus possidendi to the purchaser. If the prior mortgagee in the meantime purports to realise his own rights under his mortgage without impleading the puisne mortgagee, then (1) his decree does not give him any right of such potency, and would entitle him to the jus possidendi as against the puisne mortgagee, but (2) the act of actual transference of jus possidendi purports to assume this potency and ventures to enter the field covered by the rights of the puisne mortgage under his decree. Consequently, the question of protection arises in such a case and the question to be determined is whether this encroachment is in the area protected by lis pendena. This question has been answered differently in the several cases considered above.
24. In my opinion, the act of transference which ventures to assume this potency is an act which satisfies all the requirements of provoking the application of lis pendens. This act is not the antecedent act whereby the right in rem was given to the prior mortgagee. No doubt the prior mortgagee purported to behave as if he was only realising that right in rem. But, as a matter of fact, he failed to realise that right so far as the puisne mortgagee is concerned. The right is still available as against the puisne mortgagee if not otherwise barred and consequently it has not been realised. It is really the actual act of transference by the sale in execution of his decree against the parties to his suit which purports to give him the jus possidendi by transferring it from the mortgagor as the interest in the property of that mortgagor who was a party to the pending suit. The property no doubt was transferred to the prior mortgagee by the ' anterior act of mortgage. But it is neither that transfer nor any realisation of the right conferred by that transfer which is now in competition with the rights under the decree in the pending suit. That transfer did not create any right to possess and it has not been as yet realised so far as the puisne mortgagee is concerned. It is another act of transfer deriving its potency from a decree in possession. This act of transfer took place during the pendency of the suit on the puisne mortgage and its authority is ascribable to a party (mortgagor) to that litigation, it being the transfer of his interest by the Court on his behalf. It is this act which purports to create rights in competition with the rights under the decree in the pending litigation. The rule of lis pendens, in my e opinion, extends its protection to such cases of competition.
25. It will not be accurate to say that a puisner mortgagee's right to the ultimate jus possidendi arises only after he redeems the prior mortgage. His right is only subject to his liability to redeem the prior mortgage. He can certainly realise his right without redeeming the prior mortgage. Only what he takes or passes by such realisation remains burdened with the liability. It is only when the prior mortgagee proceeds to enforce this liability by impleading him as a party to his suit on the prior mortgage that the right of the puisne mortgagee becomes crippled and is postponed till the prior mortgage is redeemed. In my opinion, the sale at the instance of the prior mortgagee without impleading the puisne mortgage in his suit did not pass the jus possidendi free from the right of the puisne mortgagee in respect thereof. It still remained liable to be taken in execution of the decree obtained by the puisne mortgagee. Had the first mortgagee purchased the jus possidendi either in execution of his decree without impleading the puisne mortgagee or by a private treaty from the mortgagor before the suit by the puisne, mortgagee he would have been a necessary party to the puisne mortgagee's suit under Order 34, Rule 1, Civil P.C., as a person having interest in the right of redemption. It is not necessary for me in this case to consider what defences would have been open to him in such a case and whether it would have been open to him there to utilise his own mortgage as a shield. In the facts of the present case, I am of opinion that the purchase by defendants 3 to 6 could not affect the rights of the plaintiff because of the operation of the rule of lis pendens.
26. In my opinion the lease by defendants 3 to 6 in favour of defendant 2 was equally hit by the rule of lis pendens. No doubt the mortgagor and, consequently, the purchaser at the sale in execution of the decree on the first mortgage will have the right to grant certain leases under Section 65A, T.P. Act. But this power given by Section 65A, T.P. Act, will not affect application of the doctrine of lis pendens. A transaction is affected by lis pendens not because of any want of power in the parties in respect of the transaction, but because the pendency of the litigation is made to affect the exercise of that power. Consequently the fact that now Section 65A empowers the mortgagor to create certain leases will not protect a lease granted by a mortgagor in exorcise of this power from being affected by the rule of lis pendens if such a lease is given pending a suit by the mortgagee. This appeal also raises the vexed question of priority in regard to the right of possession, when the competing claimants are purchasers at execution sales under different mortgage decrees against the same mortgagor. In the view that I take of the applicability of the rule of lis pendens, it is not necessary for me to enter into this other question. It seems however that where each of the two simple mortgagees files a separate suit, impleading his mortgagor alone and not the other mortgagee and in execution sales different persons become purchasers, the priority of the date of purchase gives priority of title to possession and if as, in the present case, the prior mortgagee happens to be the prior purchaser and succeeds in getting possession, the section entitles him under certain circumstances to wield the prior mortgage as a shield to an offensive attempt by the purchaser under the puisne mortgage : Sailendra Nath v. Amarendra Nath : AIR1941Cal484 (Mitter and Khundkar JJ.), Sm. Dhapubai Mini v. Chandra Nath : AIR1938Cal524 , Guruprosad Sukul v. Tarini Charan : AIR1938Cal634 and Jagat Chandra De v. Abdul Rasid : AIR1935Cal139 . One such circumstance seems to be that the prior mortgage is still enforceable in law against the left out puisne mortgagee. If however its enforcement is already barred by lapse of time, the shield is no longer available. In the present case, this infirmity of being barred by lapse of time now attaches to the first mortgage.
27. In the result this appeal is allowed. The judgment and decree of the Court of appeal below are set aside and those of the Court of first instance are restored. The parties will bear their own coats in this appeal. Leave to appeal under Clause 15 of the Letters Patent is prayed for and is granted.