Effect of the subsequent withdrawal and abandonment of the suit.

RAMACHANDRA IYER, C.J. :- This appeal, which is filed against the judgment of Subrahmanyam, J., raises a question under Section 52, Transfer of Property Act. The property which forms the subject-matter in this litigation is half a share in what was purchased by one Peter Jagannathan, a Hindu convert to Christianity. His father, who remained a Hindu, had taken a second wife after Jagannathans mothers death. She and the two sons born of her are the appellants. Jagannathan died sometime in 1950, leaving behind him his widow and a son. A creditor of his instituted a suit, S. C. 524 of 1952, in the District Munsif Court, Kancheepuram, against the widow and son of Jagannathan, to recover the moneys due to him, and after obtaining a decree, brought the property that stood in the name of Jagannathan for sale in execution. The respondent, Chellakutti, was the purchaser at the Court sale. He obtained delivery of possession in due course.

2. The Court auction took place during the pendency of another suit, O. S. 436 of 1952, in the same Court. That suit was instituted by Jagannathans widow and son, who were the judgment-debtors under the decree in S. C. 524 of 1952, complaining that the appellants herein had unlawfully trespassed on half a share of the property and praying for recovery of possession of the same. The appellants resisted the suit, stating that the moneys which went in for the purchase of the property by Jagannathan belonged to him and his father, and that therefore they would be entitled to half a share which the latter, possessed. But, before the suit came up for trial, the execution . sale referred to above in favour of the respondent took place. After such sale, the heirs of Jagannathan were not interested in fighting the battle against the appellants for the benefit of the purchaser. It mattered little to them whether the purchaser got the entire property or only half a share therein. When therefore the suit came up for trial, they made an endorsement on the plaint : "In view of the Court sale of the subject-matter of the suit, this suit becomes unnecessary and may be dismissed without costs." The District Munsif, accordingly, dismissed the suit. The appellants then applied to the Court, which executed the decree in S. C. No. 524 of 1952, for delivery back of their property, which they claimed they were entitled to be in possession of. That petition was successful. The respondent thereupon instituted the suit out of which this appeal arises under Order 21 Rule 103 C. P. C. for a declaration of his right to possession. The appellants pleaded title in themselves and also that the respondents purchase was affected by lis pendens, it having been made during the pendency of O. S. No. 436 of 1952, which terminated in their favour.

It has now been held by both the Courts below that the property purchased by Jagannathan was his own and the appellants had no title to any part of the same. But there has been divergent views on the other question. The District Munsif who dismissed the suit upheld the plea that the respondents purchase could only be subject to the result of O. S. No. 436 of 1952, which, in effect, affirmed the title to half a share in the property. On appeal, that decree was reversed, the learned District Judge holding that Section 52 of the Transfer of Property Act would not apply, as in his opinion, the result of the suit was brought about by collusion. The respondent thereupon filed a second appeal to this Court. Subrahmanyam, J., who heard the appeal, did not agree that there was any collusion between the heirs of Jagannathan and the appellants at the time when O. S. No. 436 of 1952 was allowed to be dismissed. But the learned Judge held that, as there was an abandonment of that suit by the heirs of Jagannathan, the rule as to lis pendens would not apply to the case. The decree of the lower appellate Court was therefore affirmed.

3. In this appeal against the judgment of Subrahmanyam, J., Mr. N. Suryanar