1. This is an appeal by the plaintiff in a suit for adjudication of title by auction-purchase and recovery of possession of a share of 2 annas 8 pies in Revenue-paying Estate known as Khaira Pahari in the Oollectorate of Mozaffarpur. It appears that a separate account had been opened in. the Oollectorate in respect of this share. The plaintiff alleges that one Babu Lal Sahu, who is the father and ancestor of the defendants 3rd party, borrowed Rs. 2,300 odd from the plaintiff's predecessor-in-interest and executed a mortgage bond on 3 houses situated in the district of Chupra on the 7th Jane 1889. The plaintiff obtained a mortgage-decree on the 10th September 1895.
2. In execution, the whole of the mortgaged property was sold for about Rs. 775 and for the balanse plaintiff obtained a personal decree under Section 90 of the Transfer of Property Act. This decree was transferred for execution to the Mozaffarpur Court where the plaintiff obtained the attachment of the property in dispute on the 10th September 1897. The notice of attachment was served on the 10th November 1897. After attachment one Sagaram, ancestor of the defendants' 2nd party, filed a claim alleging that he was a purchaser under a deed of sale dated the 25th July 1894. On the 5th March. 1898, bis claim was allowed.
3. On the 12th September 1898, the plaintiff instituted a suit under Section 283 of the former Code of Civil Procedure for a declaration that Sagaram's sale-deed was spurious and the property should be made liable to attachment in execution of the plaintiff's decree. The plaintiff got a decree on the 22nd September 1899. An Appeal No. 398 of 1899 was preferred to the High Court by Sagaram but did not come on for hearing for 4 years and was dismissed on the 10th December 1903. In the meantime between the preferring of the appeal and its decision, Babu Lal's heirs made default in the payment of the Government Revenue for the June hist of 1901 which became an arrear on the 28th September. 1901. The estate was sold on the 3rd January 1902 and purchased by the contesting defendants 1st party who obtained a sale certificate on the 22nd April 1902. In execution of his decree the plaintiff purchased the property on the 23rd March 1905 and obtained delivery of possession on the 4th August 1905. He then applied for mutation of names in the Collectorate. The defendants 1st party objected and the Deputy Collector disallowed the objection on the 25th January 1906. The defendants 1st party appealed to the Collector who allowed their appeal and upheld their objection on the 9th March 1906. Thereupon the defendants 1st party dispossessed the plaintiffs on the 29th March 1906. The plaintiff sues on the allegation that as the defendants 1st party's purchase was made at the time the appeal of Sagaram was pending and the plaintiff was actively defending the appeal, the defendants first party's purchase is barred by the doctrine of lis pendens.
4. He further contended on the facts that the defendant 1st party was only a farzidar for the defendants 2nd and 3rd parties who were the real purchasers. And thirdly he maintained that his subsisting attachment operated as an encumbrance within the meaning of the Revenue Sale Law.
5. The Subordinate Judge has found against the plaintiff on all three points, though he has found in his favour on certain minor issues as to which there is no cross-appeal. Although, therefore, it seems to us doubtful whether the third and the first part of the fourth issue should not also have been decided against the plaintiff, we have only to consider in this appeal the three points set out above.
6. As regards the first point, the Subordinate Judge lays down a proposition of law which on the authorities must be considered erroneous. It is now settled law that the doctrine of lis pendens is applicable to sales in invitum and the learned Vakil for the respondents concedes that this is so. The doctrine is also applicable to proceedings to realize the mortgage money after the decree for sale of the property. But in this case the doctrine of lis pendens does not apply as no suit and no, proceedings on the decree in the mortgage suit were pending at the date of the alleged sale. It was a money decree and property not mortgaged,.had been attached. The question was who is the owner of the property, (sic) Babu Lal. However, that question was (sic) the property would have been sold all the same for arrears of its own Revenue and the effect of the sale of the share for which a separate account had been opened was to pass the share to defendants 1st party. The decree which, the plaintiff had already obtained from the Subordinate Judge, which was subsequently confirmed by the High Court, declared the property to be the property of Babu Lal and, therefore, liable to be fold for default in payment of Government Revenue by Babu Lal's daughter and successor. The test is that it made no difference whether the plaintiff obtained this declaration before or after the Revenue sale. The defendants 1st party's purchase was in no way subject to the result of plaintiff's suit unless the attachment obtained by the plaintiff in 1897 operated as an encumbrance under the Revenue Sale Law. This brings us to the third point which, as the learned Sub-ordinat Judge remarks, is really the important point in the case and which we will proceed to decide before entering upon the case on the merits as to the alleged benami.
7. Now in the first place, it appears clear from the Order Sheet on pages 100-101 of the paper book that although the original plaintiff decree-holder Ramphul Sahu, whose heirs have now become plaintiffs owing to his death during the pendency of this suit, filed his execution petition with a prayer for sale of the property in dispute without any prayer for fresh attachment, the Court considered it necessary to issue a fresh attachment owing apparently to the lapse of seven years and the plaintiff decree-holder, when he came in on the 2 5rd December 1904, accepted the decision of the Court and himself prayed for a fresh attachment after showing cause for his delay in proceeding with the execution. It can hardly be held, therefore, as the Subordinate Judge has held, that the attachment of 1897 was still subsisting and continued to subsist after the order of the 23rd December 1904. But be that as it may, it seems to us impossible to contend in the face of the ruling of the Pull Bench in Frederick Peacock v. Madan Gopal 29 C. 428, that the plaintiff acquired any title or charge upon the property by reason of the attachment in question. In that case all the authorities are set out and among them the dictum of the Judicial Committee in Moti Lal v. Karabuldin 25 C. 179 : 1 C.W.N. 639 : 24 I.A. 170 that attachment only prevents alienation; it does not confer any title.' On this dictum an argument is based in final reply for the appellants that the laches of Babu Lal's daughter in allowing the share to fall into arrears for Governmeat Revenue constituted an act of alienation by her in derogation of the attachment or, as it was put by the learned Vakil, 'If Babu Lal's heir instead of making the alienation herself allows the Government Revenue to fall into arrears and thereby causes the property to be alienated, the doctrine of lis pendens applies.'
8. This proposition has only to be stated to expose its fallacy. The Government is in no way bound by the attachment nor can a sale for arrears of Government Revenue be regarded as an alienation made by the proprietor. The only question is, does the attachment secure any lien in the nature of an encumbrance to the plaintiff under Section 54 Act XI of 1859?
9. In support of the contention that it does, much stress is laidon a dictum of Mookerjee, J., in Peari Lal Sinha v. Chandi Charan Sinha 5 C.L.J. 80 : 11 C.W.N. 163, where he says: 'No doubt, as pointed out the Judicial Committee, an attachment only prevents alienation and does not confer any title But as the property is in the custody of the law, it is only reasonable to hold that persons, who claim to take it, should first satisfy the demand, for the ultimate satisfaction of which it has been seized by the Court at the instance of the judgment-creditor.'
10. But in that case, the question to be decided was whether an attachment enured against the sons of a deceased judgment-debtor who formed with the deceased a joint Hindu family governed by the Mitalcshara Law, and secondly, whether such sons were the legal representatives of the deceased judgment-debtor. It was upon the first question that the above dictum of Mookherjee, J., was delivered and he carefully guarded himself from any decision as to what would be the effect. of the ruling in Frederick Peacock v. Madan Gopal 29 C. 428on the previous Full Bench decisions of this Court under the old law and on the question now before us, namely whether a judgment-creditor who had obtained an attachment has a charge or lien upon the attached property. For the purposes of the case before the Court the finding of Mookerjee, J., was, no doubt, speaking with all respect, correct and sufficient but it is no kind of authority for the proposition which is now contended for before us and upon which Mookerjee, J., expressly declined to give any opinion.
11. We feel ourselves concluded by the judgment of the Full Bench in Frederick Peacock v. Madan Gopal 29 C. 428, which applies in toto to this case and we hold that the attachment obtained by the plaintiff in 1897, did not give him a lien or charge in the property which was attached on a mere personal decree against Babu Lal, nor did it constitute any kind of encumbrance within the meaning of Section 54 of the Revenue Sale law. It only remains to consider the finding of the Subordinate Judge on the evidence as to the alleged benami. It is conceded by the learned Vakil for the appellants that there is really no evidence upon which he can ask us to come to a different finding on this point to that arrived at by the Subordinate Judge.
12. Indeed four out of five of the plaintiffs' own witnesses distinctly negative any such contention and the remaining witness (No. 1) is not on this point at all.
13. We find, therefore, that this appeal fails on all points and must be dismissed with costs.