The main legal point established in the judgment is that the timing of mortgages and the possession of the property during the pendency of litigation are crucial in determining the rights of the parties.

M. Madhavan Nair, J.

1. This appeal is in a suit for declaration of title and recovery of possession. The facts are thus: The suit property belonged admittedly to one Kollavana Mathew Varghese. He mortgaged it to Bersleeba Kathanar on 26th Mithunam 1089 as per Ext. D-4; and mortgaged it again to his nephew, Varkey Chandapillai, in the year 1103 both without transfer of possession. Kathanar, the first mortgagee, instituted O.S. No. 1059 of 1097 on the file of the Munsiff, Thiruvella to enforce his mortgage, and it was decreed. St. Mary's Church, Niranom, having obtained a money decree against the Kathanar attached that decree, got itself impleaded in the decree holder's place, executed the decree and purchased the property in court-sale on 24th Makaram 1117 and took possession through Court as per the delivery report, Ext. P-1, dated 12th Makaram 1118. Chandapillai, the second mortgagee, instituted O.S. No. 13 of 1118 on the file of the District Judge, Mavelikara, without impleading the aforesaid Church to enforce his mortgage, purchased the property in execution sale on 10th September 1952 (the sale certificate is Ext. D-3) and took possession through Court on 1st April 1953, as per the delivery report Ext. D-5. Defendants 1 to 3 are the children of the said Chandapillai and the 4th defendant is their lessee. The plaintiff, having obtained an assignment of the rights of the Church as per Ext. P-1, dated 12th February 1954, has instituted this suit on August 13, 1956, with the prayers aforementioned. The defendants contended that the Church never had been in actual possession of the property but Kollavana Mathew Varghese continued in possession in spite of the delivery proceedings against him in O.S. No. 1056 of 1097 that they took actual possession as per the court-sale and delivery in O.S. No. 13 of 1118, and that the plaintiff had no subsisting title to the property. The Munsiff accepted the plaintiff's case and decreed the suit; but it has been reversed by the Subordinate Judge who held the plaintiff to have had no subsisting title. Hence this second appeal by the plaintiff.

2. This is a case of competition between the prior and subsequent mortgagees. Admittedly both the mortgages were simple mortgages unaccompanied by possession. At the time of institution of the suit, O.S. No. 1056 of 1097, the second mortgage had not come to existence. It was during the pendency of that suit that the second mortgage came to be. Under section 52 of the Transfer of Property Act, the pendency of a suit commences from the date of its institution and lasts up to the final satisfaction of the decree and any dealing with the suit property by any party to the suit during such pendency will not affect the rights of the other party under the decree. As the second mortgage of 1103 was executed during pendency of the litigation on the first mortgage, no right under the second mortgage can be urged by the defendants against the proceedings had on the first mortgage. The court-sale and delivery had in O.S. No. 1056 of 1097 are therefore binding on Chandapillai, the second mortgagee, and his heirs, defendants 1 to 4. It is pertinent to note that in the suit on the second mortgage, O.S. No. 13 of 1118, the equity of redemption was not represented as the court-auction-purchaser in the first mortgagee suit in whom it vested in Makaram 1117, long before that suit, was not made a party. No title to the equity of redemption can then be claimed to have been acquired under the court-sale in that latter suit of 1118. It then follow that the title to the property is vested only in plaintiff and that the defendants had no claim of title thereto to be urged against the plaintiff. Counsel for defendants-respondents contends that the defendants had got actual possession of the property as per the delivery in their favour on 1st April 1953. Be it so, I am afraid i