The main legal point established is that the doctrine of lis pendens applies to involuntary sales, and a mortgagee is entitled to enforce a foreclosure decree.

1. The Judgment of the Court was delivered by SEN J. --This appeal arises out of a suit for ejectment. The respondent Seth Bhabutmal filed a suit in the Court of Subordinate Judge, First Class, Ralaghat, on 1-4-1941 against the appellant Hafizbi for possession of Re. 0-4-0 share of mauza Saheki, pargana Lanji, tahsil and district Ralaghat. He stated that he obtained possession on 11-12-1935 in execution of the final decree for foreclosure, dated 17-10-1935, which he obtained against Mohammad Sharif in civil suit no. 7 of 1929 on the basis of the mortgage deed dated 16-10-1922 which Mohammad Sharif executed for himself and as guardian on behalf of three minor brothers in favour of the respondent. The respondent alleged that he had applied for mutation in his favour but his application was rejected and the order was upheld in appeal by the Deputy Commissioner, Ralaghat, on 12-9-1936. He therefore filed the present suit for possession.

2. The defendant denied the claim of the plaintiff and stated that in execution of the decree, dated 23-6-1925, in civil suit no. 27 of 1925 of the Court of Subordinate Judge, Second Class, Balaghat, which Mangilal had obtained against Mohammad Sharif, his Re. 0-2-0 share of superior proprietary right and Re. 0-4-6 share of inferior proprietary right of mauza Saheki was purchased on 29-10-1929 by Zainul-abedin, his sister's husband, that the plaintiff in spite of the knowledge of this purchase did not make him a defendant in the mortgage suit no. 7 of 1929 and obtained a preliminary decree for foreclosure on 17-4-1930, that on 31-8-1930 Zainul-abedin sold to Azim Khan, husband of the appellant, the property which he had purchased at the Court auction, that on 16-4-1931 the plaintiff made an application to the Court to implead Azim Khan as a defendant, that on his death on 5-1-1932 the plaintiff wanted to implead his widow Hafizbi as a defendant, that on her objection the application to make her a defendant was dismissed on 17-10-1935 and that on that date he obtained the final decree for foreclosure. According to the defendant Zainul-abedin was a necessary party in the mortgage suit and as he was not a defendant before the preliminary decree for foreclosure and as neither Azim Khan nor his widow Hafizbi was made a defendant before the final decree for foreclosure, the plaintiff was not entitled to enforce his title based on the mortgage as against her. She stated that mutation of Re. 0-2-0 superior proprietary right and Re. 0-4-6 inferior proprietary right of mauza Saheki had been made in her favour and she was in possession and that the plaintiff never obtained actual possession of Re. 0-4-0 share of mauza Saheki which he obtained on foreclosure. She resisted the suit also on the ground that the claim was barred by limitation.

3. The trial Court found that the plaintiff's claim was within limitation, that Zainul-abedin was a necessary party to the suit, that as he was not made a party and as the application of the plaintiff to implead Azim Khan and on his death his widow Hafizbi as a defendant was dismissed, the plaintiff was not entitled to enforce his title based on the mortgage as against the defendant and that the doctrine of lis pendens was not applicable to auction sales. The trial Court accordingly dismissed the claim of the plaintiff.

4. The plaintiff filed civil appeal no. 15-A of 1942 in the Court of the District Judge, Chhindwara. In that appeal he made an application on 11-8-1942 in which he stated that the mortgage was void because it was made during the management of the Collector and because it did not specify the property which was mortgaged and asked that he be allowed to urge the pleas and that in case it was not allowed he be permitted to amend his written statement by insertion of a clause embodying the pleas. The learned District Judge rejected the application on the ground that the pleas were not of pure law but raised mixed questions of law and fact. The Court affirmed