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IN THE HIGH COURT OF ALLAHABAD
Mukerji and Srivastava, JJ.
HAKIM MOHAMMAD ILLAYAS KHAN - Appellant
Versus
SAHAB COLLECTOR BAHADUR (ALIGARH) - Respondents
Civil Revn. 1369 Of 1952
Decided On : 03/14/1957
LIS PENDENS - TRANSFER OF PROPERTY ACT, 1882 - SECTION 52 - SALE IN EXECUTION OF DECREE - APPLICABILITY OF DOCTRINE OF LIS PENDENS - PURCHASER PENDENTE LITE - RIGHTS AND LIABILITIES.
Fact of the Case:
The applicant, a second mortgagee, purchased the mortgaged properties in execution of his own decree during the pendency of a suit by the prior mortgagee to enforce his mortgage. The prior mortgagee impleaded the applicant in the execution proceedings of his decree, and the applicant objected on the grounds of limitation, non-joinder of parties, and his right to redeem the prior mortgage.
Finding of the Court:
The court held that the doctrine of lis pendens applied to the sale in execution of the applicant's decree, and that the applicant was a purchaser pendente lite. As such, he was bound by the decree obtained by the prior mortgagee in the suit to enforce his mortgage, and the applicant's properties were liable to be sold in execution of that decree.
Issues: 1. Whether the doctrine of lis pendens applied to the sale in execution of the applicant's decree. 2. Whether the applicant was a purchaser pendente lite. 3. Whether the applicant's properties were liable to be sold in execution of the prior mortgagee's decree.
Ratio Decidendi: 1. The court held that the doctrine of lis pendens applied to the sale in execution of the applicant's decree, relying on the Full Bench decision of the Allahabad High Court in Bam Sanehi Lal v. Janki Prasad. 2. The court held that the applicant was a purchaser pendente lite because he had purchased the properties during the pendency of the prior mortgagee's suit to enforce his mortgage. 3. The court held that the applicant's properties were liable to be sold in execution of the prior mortgagee's decree because the applicant was bound by the decree as a purchaser pendente lite.
Final Decision: The court dismissed the applicant's revision petition and upheld the decision of the executing court.
( 1 ) THIS case was filed as a First Appeal from order, but as the Bench before which it was put up for admission was of the view that it could be entertained only as an application in revision it has been converted into a Civil Revision.
( 2 ) ONE Zafar Husain was the owner of the Properties in dispute. On 9th June 1926 he made a simple mortgage in respect of the properties in favour of Nawab Muzammiluallah Khan for a consideration of Rs. 26,000. On 20th April, 1928 he made a second simple mortgage of the properties in favour of one Kishan Lal. Zafar Husain died after making these mortgages and was succeeded by his mother Smt. Meharun-nissa his widow Srimati Faruqi Begam and a sister Smt. Batul Fatma. The applicant before us is the husband of Smt. Batul Fatma. On llth January, 1932 the applicant purchased the mortgage rights in respect of the second simple mortgage of Zafar husain from the mortgagee Kishan Lal. A suit (Suit No. 136 of 1932) was then filed on behalf of the first mortgagee for the recovery of the mortgage debt by the sale of the mortgaged properties. The applicant who was a subsequent mortgagee of the properties at the time of the suit was, however, not impleaded in that suit as a party. A preliminary decree was passed in the suit on 27th May, 1933 and was made final on 4th august 1934. On the coming into force of the Agriculturists Relief Act, an application was made by the judgment-debtors under Sections 4 and 5 of the Act for the amendment of the decree and the decree was amended on 3rd February 1937. The decree was made payable by instalments. The applicant who was the second mortgage filed a suit on the basis of his own mortgage on 19th April, 1940 and sought to realise the amount due to him by the sale of the mortgaged properties. This suit was registered as Suit No. 26 of 1940. He too did not implead the prior mortgagee in his suit as a party. The suit was decreed. He got the decree executed and himself purchased the mortgaged properties in execution of the decree on 6th November 1943 and succeed ed in getting possession of the property as auction-purchaser. A default having been made in the payment of instalments of the decree of the prior mortgagee it was put in execution on the 31st of May 1948. In this application for execution the prior mortgagee impleaded the applicant also as a party on the ground that he was a transferee pendents lite. The applicant filed an objection in the executing Court in which besides questioning the correctness of the amount claimed he raised two other contentions. He urged in the first place that the application was time-barred. His second contention was that the execution could not proceed against him as he was no party to the decree which was being sought to be executed. If the prior mortgagee wanted to enforce his claim against him he ought to have implesded him in his suit. The mortgage of the prior mortgagee could be enforced against him only by a regular suit.
( 3 ) BOTH these objections were rejected by the executing Court but it held that the decree-holder was entitled to Rs. 26. 751-6-0 only the sale of the properties (sic ). It, therefore, declared the amount due as Rs. 26,751-6-0, but dismissed the rest of the applicants objection.
( 4 ) THE applicant has come up in revision. His learned counsel has pressed three contentions on his behalf:
" (1) That the applicant was no party to the decree sought to be executed against him. The decree had been amended and made payable in instalments in his absence. He was therefore, not bound by the amendment. But for the amendment, the decree which had been originally tassed on 4th august 1946 was barred on account of the expiry of twelve years. The application for execution which was filed on 21st May 1948 was, therefore, barred by time.
(2) He was a second mortgagee of the properties and had a right to redeem the first mortgage. The first mortgagee was, therefore, bound to implead him as a party in his own sui
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