1. The lands covered by this appeal originally belonged to Rajeswari and Sambhu. They mortgaged them to the plaintiff's lessor who obtained a decree on his mortgage in 1893. In execution he put up the property to sale and purchased it himself in 1900, and subsequently leased it out to the plaintiff. In the meantime, in 1897 the defendant's lessors had purchased the property in execution of a money-decree against Rajeswari and Sambhu. The plaintiff brought this suit to recover possession of these lands.
2. The Munsif held that the plaintiff's title was entitled to preference over that of the defendants and gave him a decree.
3. In appeal the learned District Judge gave the plaintiff a declaration of his title, but refused the prayer for khas possession, holding that the defendants were under-tenants under the plaintiff. It is not very easy to see on what ground the learned District Judge based his decision. Apparently, it was because he considered that they took their lease in good faith from persons who had purchased the land in good faith in execution of a money decree against Rajeswari and Sambhu in 1897.
4. The plaintiff appeals to this Court and contends that the Munsif's decision is right, that his title ought to prevail over that of the defendants and that he should obtain a decree in full. It is argued that the defendant's purchase is affected by the doctrine of lis pendens and also that the plaintiff's purchase being effected in the execution of a mortgage-decree, the plaintiff's title dates back to the mortgage itself.
5. It appears to me that these contentions ought to prevail.
6. As regards the doctrine of lis pendens, it is contended by the learned Pleader for the respondents that Section 52 of the Transfer of Property Act does not apply, inasmuch as the defendants purchased in an execution sale, and, therefore, by the force of Section 2, Section 52 will have no operation. I cannot accept this contention. The words of Section 2 'Nothing herein contained shall be deemed to affect any transfer in execution of a decree' mean, in my opinion, that nothing contained in Section 2, not that nothing contained in the Transfer of Property Act shall affect such a sale. And Section 52 has been held to apply to execution sale. Reliance also has been placed on the case of Venkatesh Govind v. Maruti 12 B. 217 and it has been argued that the pendency of the litigation came to an end when the decree was passed and that a purchase, subsequent to the decree and before the sale was not a purchase pendente lite. Further, it is argued that the litigation that was pending was not actively prosecuted within the meaning of Section 52. The case cited is, no doubt, an authority in the respondents' favour. But it has been held in this Court in the case of Har Shankar Prosad Singh v. Shew Gobind Shaw 4 C.W.N. 317 : 26 C. 960 that a purchase made after the passing of a mortgage-decree and before the sale in execution is a purchase pendente lite.
7. As regards the question whether the suit was actively prosecuted, it appears that four years in this case elapsed between the defendant's lessors' purchase and the mortgage-decree, a period considerably less than that in the case I have cited. Moreover, the learned District Judge has not come to any finding that the suit has not been actively prosecuted and it was held in this Court by Mr. Justice Mitra in the case of Har Pershad Lal v. Dal Mardan Singh 32 C. 891 : 9 C.W.N. 728 : 1 C.L.J. 371, that nothing would turn on the delay of the plaintiff in such a case to bring the property to sale. The same learned Judge held that the plaintiff's title in a case of this nature would relate back to the date of the mortgage so that no question of lis pendens would arise. It appears to me that, whether the doctrine of lis pendens applies or not, the plaintiff is clearly entitled to preference over the defendants.
8. Accordingly, the appeal is allowed and the decision of the lower Appellate Court set aside and that of the Court of first instance restored with costs in all the Courts.