JUDGMENT

1. The order of reference in this case states the following question for the decision of <ORG>. "Whether a first mortgagee who has purchased the mortgaged property in execution of a decree on his mortgage and sues for possession, or in the alternative for the recovery of his money, is entitled to a decree for possession subject to redemption by a puisne mortgagee with possession who was not a party to the suit by the first mortgagee?"

2. Our answer is in the negative. There are conflicting decisions of this and the other Indian <ORG> on the question which it is impossible to reconcile. The source of the difficulty seems to lie mainly in arriving at a definite conception of the rights of the second mortgagee. Section 60 of the Transfer of Property Act lays down the right of the mortgagor to redeem the mortgage. Section 75 of the Act gives every second or other subsequent mortgagee the same rights as against the prior mortgagee as the mortgagor has against him as regards the redemption, foreclosure or sale of the mortgaged property. As the mortgagor is entitled to redeem the first mortgage, the second mortgagee is likewise entitled to redeem the first. As regards foreclosure and sale, they are the rights of the mortgagee and not of the mortgagor though when a decree for foreclosure or sale is made, any rights that the mortgagor may have in the carrying out of the foreclosure or sale, may also be claimed by the second or other subsequent mortgagee. But has the second mortgagee any other right than that of redemption? The section simply says that whatever rights he may have against the mortgagor he will have them against encumbrancers subsequent to himself in date. But what are the rights of the puisne mortgagee against his mortgagor over and above his right of redemption of the prior mortgage? Has he the right to bring to sale the equity of redemption of his mortgagor and has he the right of foreclosure? Discussing the rights of mortgagees <NAME> says in his Roman Law, page 537: If the same thing has been hypothecated successively to several persons, only the first of them has the power of sale, unless a subsequent creditor has put himself in the place of the first." That is to say, it is open to the second mortgagee to redeem the first mortgage and then ask for the sale of the mortgaged property standing in the shoes of the first mortgagee. But otherwise he has no independent right of sale of the equity of redemption of his mortgagor. Dr. <NAME> in his hand-book of Roman Law says on the authority of the Code and the Digest: "A posterior hypothecatee is generally not permitted to sell the hypotheca without the consent of the prior one, unless the prior one's claim will be satisfied by the sale" Section 354 . In <NAME> v. <NAME> 7 M.H.C.R. 229 <NAME> Officiating Chief Justice, and <NAME>, J., speaking of the second mortgagee say "<NAME> justly observes that the subsequent mortgagee gets all to which he is entitled when he is allowed to redeem the prior mortgagee." This statement of the view of the Continental Jurist is in accordance with the strict English notion of the equity of redemption. The property mortgaged passes absolutely at Common Law to the mortgagee. The legal effect of the forfeiture on breach of the condition could not be altered at Common Law but it was relieved against in equity. Thus, the mortgagor had an equity to redeem. Any transferee of that equity, as a second mortgagee, is entitled to the same equity. But the second mortgage of the mortgagor's equity to redeem with rights of sale and foreclosure must at first sight seem anomalous. But when the equity of the mortgagor is itself recognised as an estate see Lord <NAME> in <NAME> v. <NAME> 2 W.L. and Tud. P. 9 there can be no difficulty in a mortgage of that estate attended with rights in the mortgagee, similar to those of the first mortgagee. A fortiori where both mortgagee and mortgagor have legal estates as in this country. But sale of the mortgaged property even at the instance of the first mortgagee was not ordered in England as a matter of course. See the judgment of Lord <NAME> in <NAME> v. <NAME> 10 Ch. A p. 32 : 44, L.J. Ch. 157 : 31 L.T. 650 : 23 W. 11. 95. He said "it appears to me that under the recent Act of Parliament, 15 and 16 Victoria, Chapter 86, Section 48 , it is within the discretion of the <ORG> in a mortgage-suit, whether a foreclosure or sale shall be ordered. But a sale is not to be ordered as of course." Lower down in the same page he says "I think the <ORG> must rest satisfied with making that which would have been the ordinary form of decree before the statute and decreeing simply foreclosure and not a sale." A sale at the instance of the second mortgagee was a matter of more difficulty. In a suit by a second mortgagee of a moiety who applied for a sale (in his suit for foreclosure) the conduct of the sale was given to the first mortgagee of the entirety as more convenient and less expensive <NAME> v. <NAME> 7 W.R. 5. The suit evidently in that case was not for sale subject to the first mortgage but free of all encumbrances. At the request of the second mortgagee in a suit by the first mortgagee an order was made for sale of the property first mortgaged or foreclosure in case sale should not be effected: See <NAME> v. <NAME> 55 L.J. Ch. 831 : 54 L.T. 670 : 34 W.R. 561. We have not been able to find any instance in England of a suit for sale by the second mortgagee of the mortgagor's equity of redemption merely; leaving the first mortgage unaffected. In Jones on Mortgages American authority is cited ( section 1580 ) for the view that in case the prior mortgage is not due a puisne mortgagee may have a decree for the sale of the equity of redemption subject to the prior mortgage; but if it is due he may redeem and sell the whole estate. A junior mortgagee is entitled to bring in a bill to foreclose the equity of his mortgagor. The statement in Jones, Sections 1395 and 1431 , that after foreclosure or sale by the first mortgagee the second mortgagee who had not been joined in the suit of the first has only the right to redeem is only explicable with reference to the English and American practice of not decreeing sale of the equity of redemption at the suit of the second mortgagee. But Section 25 of the Conveyancing and Law of Property Act, 1881, says "any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone or for sale alone or for sale or redemption in the alternative." This section distinctly recognizes the right of a second mortgagee to sue for sale but even this does not seem to warrant the sale of his mortgagor's mere right of redemption. The definition of a mortgage in the Transfer of Property Act includes the transfer of an interest in the equity of redemption to the second or other subsequent mortgagees and such second mortgagee is entitled to the same rights of sale of the interest mortgaged to him as the first mortgagee himself has under Section 67 or 68. Section 96 which speaks of a sale subject to a prior mortgage contemplates a suit for sale by the second mortgagee without his being confined to the mere right to redeem the first mortgage. Whatever doubts there may arise on this question under the Transfer of Property Act , Order XXXIV of the present Code of Civil Procedure sets the matter at rest by the explanation to Rule 1, which runs as follows: "A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit." It was held by the Allahabad High <ORG> before the enactment of the present Code by a Full Bench, in <NAME> v. Kazim Husain 13. A. 432 that a second mortgagee's only remedy was a suit for redemption and that he could not sue for sale. It was also held by the Bombay High <ORG> in a series of cases that a sale under a decree on the first mortgage carried with it all' rights of the mortgagor as at the date of the mortgage even though the second mortgagee was no party to the suit (see Jones on Mortgages, Sections 1654 and 1656 ). These two principles are the foundation for many of the later judgments of those <ORG>s as regards the rights of a puisne incumbrancer with reference to the prior mortgagee who had sold in execution of a decree the property of the mortgagor without having made the puisne incumbrancer a party to the suit. But so far as this <ORG> is concerned, the uniform practice has been to recognize the right of the second mortgagee in case there was a personal covenant in his favour to sue for sale notwithstanding the contrary note sounded by the decision in <NAME> v. <NAME> 7 M.H.C.R. 229. In <NAME> v. <NAME> 4 M. 213; <NAME> v. <NAME> 8 M. 246.; <CITATION> 20 M. 120 and in numerous cases unreported, this <ORG> has consistently recognised the right of the second mortgagee to sue for sale subject to the prior mortgage. The Full Bench of the Calcutta High <ORG> has also taken the same view: See <NAME> v. <NAME> 30 C. 599.

3. The question then arises whether the right of the second mortgagee can in any way be affected by proceedings to which he was not a party. On general principles it seems impossible to understand how a person can be affected by proceedings to which he was not a party or in which he was not in some way represented. <ORG> has definitely pronounced upon this point. In <NAME> v. <NAME> 14 M.I.A. 144 : 8 B.L.R. 104 : 16 W.R. 33 where a foreclosure decree was first obtained by the first mortgagee without making the second mortgagee a party, Lord Justice <NAME> delivering the judgment of <ORG> said "it is difficult to see how a right of entry or cause of action against one man, in respect of his property, could be either lost or gained by proceedings against another man in respect of his property. He approved of the decision of <ORG> on the point by saying "it was, of course, held by <ORG> that he was in no wise affected by those proceedings." In <NAME> v. <NAME> 18 C. 164 : 17 I.A. 201, the same tribunal observed with reference to the rights of a subsequent mortgagee, at page 179 as follows: "It was indeed argued by Mr. <NAME> that the sale in 1879 (at the suit of the prior mortgagee) had the effect of shutting out all puisne incumbrances. But their Lordships consider that the right view on this point has been taken in both the Courts below. Persons who have taken transfers of property subject to a mortgage cannot be bound by proceedings in a subsequent suit between the prior mortgagee and the mortgagor to which they are never made parties." These observations are not confined to the mere preservation of the subsequent mortgagee's right to redeem the previous mortgage. If the rights of the puisne incumbrancer who was not made a party to the suit of the prior mortgagee are preserved in every respect, the right to sue for sale of the equity of redemption which existed previous to the suit by the first mortgagee must continue to remain after it. Again, in <NAME> v. <NAME>, 21 C. 70 : 20 I.A. 165, Lord <NAME> says at page 79: "As regards the plaintiffs' title to sue, the learned Counsel for the appellant pointed out that the plaint, on the face of it, showed that the property on which the plaintiffs claimed to have a charge had been sold before the date of the Government sale, under a decree obtained by a prior mortgagee against the mortgagor and they insisted that such a sale has the effect of displacing puisne mortgagees and leaving them with nothing but a claim against the surplus proceeds, if any. That, however, in their Lordships' opinion, is not the necessary consequence of a sale under a decree obtained by a prior mortgagee against the mortgagor in a suit to which the puisne incumbrancers are not parties." Their Lordships recognised the right of the puisne incumbrancer to proceed against the land, though it must be admitted that in that case the purchaser under the prior mortgage decree did not dispute it. <CITATION> 37 C. 239 : 5 Ind. Cas.151 : 14 C.W.N. 214 : 11 C.L.J. 166 : 12 Bom. L.R. 234 : 20 M.L.J. 153, where the dispute was between two sub-mortgagees of a mortgage-interest and the plaintiff was in point of time the second sub-mortgagee (by deposit of title-deeds) <ORG> observed that his rights, whatever they may have been, remained unaffected by the decree" in the suit of the first sub-mortgagee to which the second was not a party: see pages 248 and 250.

4. The authority, therefore, of <ORG> is clear for the position that whatever rights the second mortgagee as such may have at the date of his mortgage whether to possession (if his mortgage be one with possession and the previous mortgage without it) or to sale or foreclosure under Section 67 , such rights remain altogether unaffected by the suit of the first mortgagee without the second being a party to it and the sale in execution of his decree. He has also the right to redeem the prior mortgage if it has not been extinguished by merger in the equity of redemption. Such merger is practically impossible where the prior mortgagee gets in the equity of redemption by private or public sale, for it must always be for his benefit to retain the priority of his incumbrance and shield himself against the puisne incumbrancer, see Section 101 of the Transfer of Property Act. The rule in <NAME> v. <ORG> has been definitely abandoned in India since <NAME>' case <NAME> Gopal Doss v. Rambux Seochand 11 I.A. 126 : 10 C. 1035 and largely discountenanced in England: Stevens v. <ORG> 8 Ch. 1064 at p. 1069 : 42 L.J. Ch. 694 : 29 L.T. 318 : 21 W.R. 858; Thorne v. <NAME> (1895) A.C.11 at p. 16 : 64 L.J. Ch. 1 : 11 R. 67 : 71 L.T. 852 and <ORG> v. <NAME> (1896) 1 Ch. 726 : 65 L.J. Ch. 486 : 74 L.T. 228 : 14 W.R. 612. Merger on principle is impossible, for the case of the first mortgagee acquiring the equity of redemption when a second mortgage is still outstanding is not one of the rights and correlative obligation coalescing in the same person (see <NAME>'s Jurisprudence page 75) or of a smaller interest getting absorbed by a larger (see <NAME>, Appendix LVII) or of two contiguous interests carved out of property combining to form a larger whole. But if merger there should be notwithstanding, according to the older English notion (see Coote on Mortgages Vol. II, page 1467), while it leaves nothing for the second mortgagee to redeem, it elevates the second mortgagee to the position of first mortgagee enlarging his security. It cannot in any sense cut down the rights of the second mortgagee as they stood at the date of the second mortgage. As we have pointed out already, the first mortgagee preserves his priority in spite of his purchase of the equity of redemption behind the back of the second mortgagee. The second mortgagee may, if he chooses, still redeem the first. But redemption is an equitable claim, or in India a legal right, which he may seek to enforce and not a liability which he may be compelled to discharge. If, therefore, the second mortgagee is not willing to redeem the first mortgage after the purchase of the equity of redemption of the mortgagor in <ORG> or private sale by the first mortgagee, he cannot be deprived of his original right to institute proceedings for sale or foreclosure (whatever it was) under Section 67 as second mortgagee.

5. In examining the multitude of cases as regards the rights of first and second mortgagees after suit and sale by the one or the other or by each independently without impleading in the suit the representatives of all interests, carved out of the property, it is necessary to bear in mind certain misconceptions which have arisen in the course of the growth of the law of mortgages in this country, for otherwise we shall run the risk of misunderstanding and misapplying the cases. It was supposed at one time that a first mortgagee, selling in execution of a decree on his mortgage obtained in a suit to which the second mortgagee was not a party, succeeded in putting an end to the second mortgage altogether: See 8, <CITATION> 2 B. 662; <NAME> v. <NAME> 4 A. 518; <NAME> v. <NAME> 8 A. 324 and <CITATION> 4 C. 817. A modification of this view was adopted in later cases, namely, that the second mortgage should not be treated as extinguished at least when the first mortgagee had notice of the second mortgage and deliberately omitted to implead that mortgagee as a party defendant; See <NAME> v. <NAME> 9 A. 125; <NAME> v. <NAME> 10 A. 520 and <NAME> v. <NAME>, <NAME> 13 A. 315. Whatever effect the non-inclusion of the second mortgagee as a party to the suit on the first mortgage might be deemed to have on the maintainability of that suit in case he had notice, it is difficult to see how the second mortgagee could in any wise be affected. And this is the position laid down by the <ORG> cases already referred to.

6. Some of the decisions of <ORG> are coloured by the misconception that a second or subsequent mortgagee has no right to sue for sale or foreclosure but can only claim to redeem the prior mortgage and after such redemption sue for sale or foreclosure according to his rights under Section 67 of the Act. We have also to remember the fact that in particular cases the decision has depended upon the circumstance, sometimes expressly noticed and sometimes not, that the prior or subsequent mortgage was a mortgage with possession and that the right to possession was attached to the mortgage, and did not accompany the purchase of the equity of redemption. Oftentimes, the form of the decree has had reference to the pleadings of the parties, the second mortgagee who was not a party to the first mortgagee's suit being content to redeem the first instead of insisting on his right to bring the equity of redemption to sale. Or, the first mortgagee who has brought the equity of redemption in proceedings to which the second mortgagee was not a party has waived his right to sue a second time upon his first mortgage impleading the second mortgagee and has been content to pay off the second mortgage as the purchaser of the equity of redemption.

7. Bearing the foregoing considerations in mind, let us proceed to examine the decided cases. The following Allahabad cases were relied on in the course of the argument on one side, or the other: <NAME> v. <NAME> 13 A. 315; <CITATION> 19 A 541; <CITATION> 21 A. 235; <NAME> v. <NAME> 23 A. 1 and <NAME> v. <NAME> 26 A. 464. With the exception of the first, the remaining cases will be found to have no bearing on the question under consideration, and the judgment in that case vitiated by the erroneous view that a subsequent mortgagee has only the limited right to redeem the first mortgage as laid down in the <ORG> case in <NAME> v. <NAME> 13. A. 432. The first mortgagee who purchased in execution of his decree on the mortgage sued the second mortgagee in possession under his mortgage in ejectment and the <ORG> gave him a decree subject to redemption within a fixed time by the second mortgagee. It was erroneously assumed that the second mortgagee was only entitled to redeem. The purchaser and first mortgagee did not sue for foreclosure, assuming he had the right to it. He did not as purchaser seek to redeem the second mortgage. The second mortgagee entitled to possession under his mortgage had the right to continue in possession until redeemed by the purchaser and could not be ejected by the first mortgagee or compelled to redeem him. But the decision was the logical result of the view taken by the <ORG> in <NAME> v. <NAME> 13. A. 432. The <ORG> cases in <CITATION> 19 A 541 and <CITATION> 21 A. 235 simply lay down the rule that when there is a mortgage and sale of the equity of redemption by the mortgagor or in execution of a money-decree against him, the mortgagee who in a subsequent suit on his mortgage to which the first purchaser is not a party purchases the mortgaged property cannot affect the rights of the first purchaser. He cannot, on the basis of his purchase, eject the first purchaser. But if he sues to enforce his mortgage again against the first purchaser by foreclosure <NAME> v. <NAME> 23 A. 1 or sale <CITATION> 26 A. 464 he is at liberty to do so. Some of the observations in the last two cases may perhaps be open to exception but the decisions themselves are in accordance with true principle. <NAME> v. <NAME> 26 M. 537 which seems to be a correct decision on the facts of that case, is quoted with approval as warranting the position that the second mortgagee with possession has only the right to redeem.

8. Passing on to Bombay, we find that although it is not in terms anywhere stated that a second mortgagee is only entitled to sue for redemption but not for foreclosure or sale, it is repeatedly affirmed that the first mortgagee is entitled to sell the property as it stood at the date of his mortgage free from all subsequent encumbrances even if the Subsequent mortgagee was not made a party to his suit on the first mortgage. All that is reserved to the subsequent mortgagee in such a case, according to <ORG>, is a mere liberty to redeem subject to which the purchaser under the decree on the first mortgage has full rights in the property purchased. The decisions in <ORG> v. <ORG> 10 B. 224 and <ORG> v. <ORG> 20 B. 390 and the other Bombay cases there cited, clearly express the above view. In both the cases above cited possession was given to the purchaser under the decree on the first mortgage setting aside the right of the second mortgagee to possession under his mortgage and reserving to him a mere liberty to redeem within a time fixed. <NAME> v. <NAME> 28 B. 153 does not touch the question of the rights of the second mortgagee. It merely decides that the first mortgagee who has foreclosed without making the second mortgagee a party to the proceeding may redeem him by virtue of the equity of, redemption acquired under the foreclosure. The decision in <NAME> v. <NAME> 8 B. 168, however, cannot be reconciled with the current of authority in Bombay as pointed out by <NAME>, J. in <NAME> v. <NAME>, 28 B. 153 at page 167 and by <NAME>, J. at page 175. Though it seems to stand alone so far as that <ORG> is concerned, the decision appears to be sound in principle. A stranger who purchased in execution of a decree on the first, mortgage sued in ejectment the second mortgagee with possession who had not been a party to the prior suit but the <ORG> gave him only a decree for redemption of the second mortgage on the footing that he was entitled to possession until redeemed. This case, therefore, is an authority which supports the view indicated in our answer to the reference.

9. The following decisions of <ORG>, namely, <CITATION> 32 C. 891 : 9 C.W.N. 728 : 1 C.L.J. 371; <NAME> v. <NAME> 5 C.L.J. 315 : 11 C.W.N. 403; <NAME> v. <NAME> 6 C.L.J. 612 : 12 C.W.N. 107 were referred to by Mr. <NAME>. They support his contention that the first mortgagee who has bought the property in a suit upon the mortgage to which the second mortgagee was not a party is entitled to possession as against him though he (the second mortgagee) had previously obtained possession by a sale under his mortgage and that the second mortgagee is merely entitled to redeem the prior mortgage. It is not easy to reconcile these cases with the principle of the <ORG> decision in <NAME> v. <NAME> 30 C. 599 which held the right of sale of the second mortgagee to be unaffected by proceedings to which he was not a party. It seems to be fairly deducible from that case that if the second mortgagee had bought in execution of his decree the equity of redemption prior to the sale in execution of the decree on the first mortgage his rights must be equally saved and cannot be cut down to a mere right of redemption. The principle of the <ORG> decisions to which reference has already been made is also opposed to these <NAME> rulings. The dissenting judgment of <NAME>, J., in <CITATION> 32 C. 891 : 9 C.W.N. 728 : 1 C.L.J. 371, refusing possession to the first mortgagee who purchased in execution against the second mortgagee who had previously bought the property under a decree on the second mortgage is in accord with what appears to be the true principle as to the rights of second mortgagees. It is not easy to understand how the purchasers of the mortgagor's equity of redemption under a private sale were held liable to be deprived of possession by the first mortgagee-purchaser who did not implead those purchasers in his suit. See <NAME>, J. in <NAME> v. <NAME> 5 C.L.J. 315 : 11 C.W.N. 403. Such a view would even be opposed to the rulings in <CITATION> . Rai 19 A 541 and <CITATION> 21 A. 235.

10. We pass on now to the Madras cases. In Venkatanarasammah v. Ramiah 2 M. 108 it was held that the first mortgagee who was the first purchaser in execution was entitled to possession against the defendant who bought later under his second mortgage. Both mortgages were simple and the Court held that the second mortgagee bought nothing after the sale of the equity in the first mortgagee's suit. (<NAME>, J. at page 112). The Court further held that the right of the second mortgagee was not affected though effect could not be given to it in that suit having regard to its particular frame. This is entirely in accordance with two decisions of <ORG> in <CITATION> 5 C. 265 : 4 C.L.R. 358 and <CITATION> 5 C. 269 where the mortgagee who became first entitled to possession was adjudged it against the other. <NAME> v. <NAME> 26 M. 486 was a similar decision where the second mortgagee who was the first purchaser was maintained in possession against the later purchaser under the first mortgage. So also was the case of <CITATION> 32 M. 485 : 4 Ind. Cas. 1077 Section 19 M.L.J. 728. In <NAME> v. <NAME> 4 M. 213 there was no sale under the first mortgage and the second mortgage was one with possession. The second mortgagee was held entitled to hold possession against a purchaser of the mortgagor's equity of redemption under a money-decree. The case has no bearing on the particular question now under consideration though the remarks of <ORG>, on the rights of a second mortgagee to sue for sale are instructive. <CITATION> 5 M. 184 the second mortgage was with possession. The purchaser under the decree on the first mortgage which was simple sued to eject the second mortgagee. It was held that the suit was liable to be dismissed, but as the second mortgagee who was respondent in the appeal did not object to the direction of the lower Court to redeem the prior mortgage or be for ever foreclosed that was not disturbed: (See page 188). In Rangasamy Naiken v. Komarammal 26 M. 484 the same decision was pronounced on similar facts. The decision in <CITATION> 13 M.L.J. 72 has no bearing on the present controversy. There the second mortgagee who bought nothing under his subsequent decree and sale against the mortgagor after the first mortgagee had bought in execution of his decree was held entitled to redeem the first mortgage which was treated as still in law subsisting. That was the plaintiff's prayer and it was granted. There are a few more cases which, however, require a more minute examination. <CITATION> 16 M. 121 rests on the view which we cannot accept that a sale under the first mortgage causes a merger of the mortgage in the equity of redemption so that the second mortgagee becomes disentitled to sue for redemption of a mortgage which no longer subsists. This case is against the whole trend of authority in India which repudiates the doctrine of merger, at all events since <NAME>'s case <NAME> Gopaldoss v. Rambux Seochand 11 I.A. 126 : 10 C. 1035. The second mortgagee was usufructuary. The suit brought by him for redemption was dismissed but it was held that he was entitled to remain in possession till he was redeemed. This case is no authority for the respondent's position that the second mortgagee loses his right to possession by the sale under the first mortgagee's decree and has only the privilege of redemption. The learned Judges made no reference to the second mortgagee's right of sale as there was apparently no covenant to pay. The actual decision in <CITATION> 17 M. 17 is not in conflict with the true principles as to the right of a second mortgagee. Both the mortgages were usufructuary. The first mortgagee was entitled to possession but the mortgagor gave possession to the second. The first mortgagee having sued, and obtained a decree for sale and sold the equity of redemption was clearly entitled to possession when he sued the second mortgagee in ejectment apart from the question dealt with in the case as to the effect of the order rejecting his claim under Section 278 . It is, however, observed at page 20 that all that he (defendant) can ask as puisne mortgagee is that he shall be allowed an opportunity of redeeming and the decisions in <NAME> v. <NAME> 6 C. 317; <NAME> v. Galabsing 4 B. 83 and <NAME> v. <NAME> 8 B. 168 are cited in support of the observation. None of those cases negatives the right of a second mortgagee to sue for sale whether before or after the first mortgagee's decree and sale. It may be the second mortgagee had no right of sale under the terms of his mortgage and as a usufructuary mortgagee he could only seek redemption, the right to possession having gone with the first mortgagee. This decision also does not support the respondent. <CITATION> 20 M. 120 has been already referred to as recognising the right of a second mortgagee to sue for sale contrary to the doctrine in Mata Din Kasodhan v. Kazim Hussain 13. A. 432. <CITATION> 24 M. 171 turned on the construction of the decree in the suit of the second mortgagee which was expressed to be subject to the rights of purchase under the first mortgagee's decree. Moreover, the first mortgagee being the first purchaser in possession could not be turned out in execution of his decree by the second mortgagee who had merely bought subject to the rights of the first purchaser. The second mortgagee had not obtained a decree for sale of the equity of redemption that is the interest of his mortgagor which had passed to the purchaser under the first mortgagee's decree. <NAME>, J., quotes with approval <CITATION> 2 M. 108; <CITATION> 5 C. 265 : 4 C.L.R. 358 and <CITATION> 5 M. 184. Having once sued for sale, making the mortgagor and the purchaser under the first mortgagee's decree parties, the second mortgagee could not sue them a second time for sale. The observation, therefore, that the right of redemption and no other was all that remained to the second mortgagee in the circumstances of the case was perfectly right. No general proposition was laid down that a second mortgagee had a mere right to redeem and after redemption to sell, nor that after the first mortgagee's suit and sale without making the second mortgagee a party the right of redemption was all that could remain in him. <NAME> v. <NAME> 20 M. 120 is not dissented from though the language employed in that case is stated to be open to exception. <CITATION> 26 M. 332 decides that a second mortgagee who is not made a party to the first mortgagee's suit for sale cannot apply under Section 310A , Civil Procedure Code, to set aside the sale. It is authority for the position that no interest of his (in which must be included his right to bring the equity of redemption to sale) passes by the sale under the decree of the first mortgagee. Mr. <NAME> relied very strongly on two decisions of this Court, <ORG> Veerasami Chetti 26 M. 537 and <CITATION> 31 M. 425 : 3 M.L.T. 397 : 18 M.L.J. 298. As regards the first, if the facts are carefully examined there is nothing in the decision which can be invoked in support of the respondent though certain observations are not reconcilable with the principle that the second mortgagee who was not a party to the first mortgagee's suit; remained unaffected in every respect. <ORG> v. <NAME> 10 B. 224 and <NAME> v. Mundas Kuberdas 20 B. 390 which we have already pointed out as not in accordance with the true principles as to the rights of second mortgagees are cited in this case with approval and the remarks of <NAME>. J., in <CITATION> 24 M. 171 are treated as laying down a general rule with reference to the rights of second mortgagees without reference to the particular facts of that case. The facts, however, in <ORG> Veerasami Chetti 26 M. 537 fully justified the decision in that case. Both the mortgages were usufructuary. The first mortgagee sued first for sale apparently upon a covenant to pay and purchased in execution of his decree behind the back of the second. He now sued the second mortgagee for the amount of his decree and in default for foreclosure. The second mortgagee had apparently no right of sale under his mortgage. The first mortgagee had the right to possession and it could not, there fore, pass to the second. The only remedy left to the second mortgagee was redemption and this was recognised as unaffected by the prior proceedings. Any observations tending towards a limitation of the second mortgagee's rights in all cases to the mere privilege of redemption must be regarded as unsupported by principle or the general trend, of authority in this Court. The decision in <CITATION> 31 M. 425 : 3 M.L.T. 397 : 18 M.L.J. 298 does not appear to us to help the respondent. Indeed it expressly follows the decision in <CITATION> 20 M. 120. The suit itself was by the second mortgagee and a person who had acquired the rights of the first mortgagee and the mortgagor's equity of redemption behind the back of the second was the defendant in the suit. The plaintiff asked for a decree for sale subject to the first mortgage or in the alternative for redemption of the first mortgage. The decision did not negative the right of sale subject to the first mortgage but in view to the alternative prayer to redeem and the right of the purchaser of the mortgagor's equity of redemption it was thought that the better form of decree was to give the plaintiff redemption and a sale of the mortgaged property after redemption of the prior mortgage on failure of the defendant to redeem the plaintiff in his turn. There can be no doubt that this form of decree effectually disposes- of the claim of all parties interested in the mortgaged property. If, instead, a mere decree for sale of the equity of redemption on failure of the purchaser of it to redeem the plaintiff had been made, it would have left the rights of the same defendant qua first mortgagee undetermined. It is certainly a wise rule as far as possible and consistently with the frame of the suit to adjust the rights of all parties interested in the mortgaged property. One more case deserves to be noticed and that is the decision in <CITATION> 8 M.L.J. 298. There the second mortgagee's suit for sale after the first mortgagee's sale under his decree was dismissed as against the purchaser on failure to redeem the prior mortgage. It seems to us that in case the purchaser of the equity of redemption was not willing to redeem the plaintiff he was entitled to a decree for sale subject to the prior mortgage. There was no reason why that prayer should have been refused when the first mortgagee was not suing the second for foreclosure or sale.

11. On a full review of the decided cases the following propositions appear to be established:

1. A second mortgagee is entitled to the same rights as the first mortgagee with reference to his security having regard to the nature of his mortgage.

2. The purchaser of the equity of redemption after the first mortgage and the second mortgagee both stand on the same footing with reference to their respective rights against the first mortgagee when they have not been impleaded in the suit instituted by him on his mortgage.

3. Those rights are unaffected by the suit of the first mortgagee to which they are not made parties and the decree passed therein and the sale made in pursuance thereof.

4. The purchaser in such a suit, whether it is a first mortgagee or a stranger, does not acquire the rights of the mortgagor as at the date of the first mortgage but only those that subsist in him at the date of the suit.

12. It follows that the question referred must be answered as stated already against the plaintiffs.


<NAME>, J.

1. <NAME>, the Appellant before us by Special Leave, purchased some lease hold land for Rs. 10,500/- from <NAME> and others under a sale deed of 7-7-1958 (Exhibit B-7) and some other lands shown in a sales' certificate dated 15-7-1960, (Exhibit B-51) sold to him for Rs. 6,550/- at a public auction of immovable property held to realise the dues in respect of loans taken by <NAME> under the Land Improvement Loans' Act 19 of 1883. Both <NAME> and <NAME>, mentioned above, were impleaded as codefendants in a partition suit, in Vellore, Madras, now before us in appeal, commenced by a pauper application dated 23-6-1958 filed by the plaintiff-respondent <NAME> so that the suit must be deemed to have been filed on that date. The plaintiff respondent before us had challenged, by an amendment of his plaint on 18-9-1961, the validity of the- sales of land mentioned above, consisting of items given in Schedule 'B' to the plaint, on the ground, inter-alia, that these sales, of joint property in suit, were struck by the doctrine of lis pendens embodied in Section 52 of the Indian Transfer of Property Act. As this is the sole question, on merits, raised by the appellant before us for consideration, we will only mention those facts which are relevant for it decision.

2. Before, however, dealing with the above question, a preliminary objection to the hearing of this appeal may be disposed of. <ORG> and the Court of first appeal having held that the rule of lis pendens applied to the sales mentioned above, the appellant purchaser had filed a second appeal in <ORG>, which was substantially dismissed by a learned Judge of that Court, on 19-7-1968, after a modification of the decree. Leave to file a Letters Patent appeal was not asked for in the manner required by Rule 28, Order IV of the Rules of Madras High Court, which runs as follows :

28. When an appeal against an appellate decree.or order has been heard and disposed of by a single Judge, any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered.

But, the appellant, after obtaining certified copies of the judgment and decree of <ORG>, sent a letter to the <ORG> that the case be listed again for obtaining a certificate of fitness to file a Letters' Patent appeal. The case was, therefore, listed before the learned Judge and an oral application which was then made for grant of a certificate, was rejected on 6-9-1968 on the ground that it had not been made at the proper time.

3. It was contended, on behalf of the respondent, that, in the circumstances stated above, the appellant must be deemed to have been satisfied with the Judgment of the High Court as his Counsel did not ask for leave to file a Letters' Patent appeal as required by Order IV Rule 28 of the Rules of the Madras High Court (that is to say, immediately after the judgment has been delivered). The following observations of this Court in <CITATION> . @ 52-53 were cited to contend that the appeal before us should be rejected in limine :

Normally, an application for" special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent Appeal has been a vaild of. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that Article 133(3) expressly provides that normally an appeal will not lie to this Court from the judgment, decree, or final order of one Judge of <ORG>. It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such cases, it is necessary that the remedy by way of a Letters' Patent Appeal must be resorted to before a party comes to this Court.

4. In reply to the preliminary objection, Mr. <NAME>, appearing for appellant, has assailed the validity of the above mentioned Rule 28 of Order IV itself. It is submitted that the rule conflicts with the provisions of Clause 15 of the Letters' Patent of the Madras High Court requiring only that the Judge who passed the judgment should declare that the case is fit one for appeal as a condition for appealing. It was urged that the period of limitation for filing an appeal should not, in effect, be cut down by a rule such as the one found in Rule 28, Order IV of the Rules of Madras High Court. It was urged that, before Article 117 of the Limitation Act of 1963 introduced a period of thirty days from a decree or order for filing a Letters' Patent appeal, the period of limitation for such appeals fell under the residuary Article 181 of the old Limitation Act . As applications for certification fell outside the provisions of the Civil Procedure Code and there was no specific provision for them in the Limitation Act <ORG> could frame its own rule prescribing the mode and time for making such applications.

5. Rule 28 of Order IV of <ORG> does not purport to affect the power to give the declaration contemplated by Clause 15 of the Letters' Patent. In some <ORG>, there is no rule of the <ORG> laying down that the application should be oral and made immediately after the judgment has been delivered. It is, however, evident that a rule such as Rule 28 of Order IV <ORG> is most useful and necessary particularly when a period of thirty days only for filing an appeal has been prescribed in 1963. The Judge pronouncing the judgment can decide then and there, in the presence of parties or their counsel, whether the case calls for a certificate. In a suitable case, where a party is able to prove that it was prevented due to some cause beyond its control from asking for leave at the proper time, the Judge concerned may condone noncompliance by a party with Rule 28, Order IV, of <ORG>, or extend time by applying Section 5 of the Limitation Act. This salutary rule could not, therefore, be held to be ultra vires (sic) invalid.

6. There is, however, another answer to the preliminary objection. It was contended that the case before us is covered by what was laid down by this Court in <NAME> case (Supra) when it said (at page 53) :-

...we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this <ORG> under Article 136 , it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this <ORG> under Article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this <ORG> has to decide on the facts of each case.

In that particular case, this <ORG> had actually heard and allowed the appeal by Special leave because it he'd that there was no general inflexible rule that special leave should be refused where the appellant has not exhausted his rights by asking for a certificate of fitness of a case and because that case called for interference.

7. It is urged before us that the appellant had done whatever he possibly could, in the circumstances of the case, to apply for and obtain a certificate of fitness after going through the judgment of <ORG>, so that the rule that alternative modes of redress should be exhausted before coming to this Court had been really complied with. Each case must, we think, be decided upon its own facts. In the case before us, although the appellant was not shown to have attempted any explanation of failure to apply for the certificate at the proper time, yet, the special leave petition having been granted, and the case having passed, without objection, beyond the stage of interim orders and printing of the records, we have heard arguments on merits, also. The merits may now be considered.

8. The challenge on the ground of lis pendens, which had been accepted by the Courts in Madras, right up to <ORG>, was directed against two kinds of sales : firstly, there was the ostensibly voluntary sale of 7-7-1958 under a sale deed by the defendant <NAME> and his major son <NAME> and three minor sons <NAME>, <NAME> alias Thanikachalam, and <NAME> in favour of the defendant appellant; and, secondly, there was the sale evidenced by the sale certificate (Exhibit B. 51) of 15-7-1960 showing that the auction sale was held in order to realise certain "arrears under hire purchase system due to Shri O. D. <NAME>" The words "due to" must in the context, be read as "due from' because "falsa demonstration non nocet

9. The deed of the voluntary sale for Rs. 10,500/- showed that Rs. 7375.11/- Ans. were to be set off against the money due on a decree obtained by the purchaser against the sellers in original suit 2/56 of the Vellore Sub-Court, Rs. 538.5/- Ans. were left to liquidate the amount due for principal and interest due to the purchaser on a bond dated 14-10-1957, by <NAME> <NAME>, Rs. 662.9/- Ans. was to be set off to liquidate another amount due to the purchaser from <NAME> on account of the principal and interest on another bond executed by <NAME>, Rs. 1250.0.0/- was left to pay off and liquidate the balance of a debt due to one <NAME> from <NAME>, Rs. 100.0.0 /-were meant to settle a liability to the Government in respect of a purchase of cattle and for digging of some well, Rs. 51.13/- Ans. were to go towards settling a similar liability, and only Rs. 521.11 /-Ans. were paid in cash to the seller after deducting other amounts for meeting liabilities most of which were shown as debts to the purchaser himself. It may be mentioned here that, on 17-1-1944, <NAME> had executed a mortgage of some of the property in Schedule 'B' of the plaint for Rs. 7,500/- in favour of <NAME>, and he had executed a second mortgage in respect of one item of property of Schedule 'B' in favour of <NAME>, who had assigned his rights to <NAME>. A third mortgage of the first item of Schedule 'B' properties was executed on 27-5-1952 by <NAME>, in favour of the appellant <NAME>, was said to be necessitated by the need to pay arrears of Rs. 3,000/- income tax and for discharging a debt and a pronote in favour of a man called <NAME>. In 1955, an original suit No. 124/1955 had been filed by <NAME> who had obtained orders for the sale of the first item of Schedule 'B' properties shown in the plaint. The original suit No. 2 of 1956 had been filed for principal and interest due on 27-5-1952 to the appellant who had obtained an attachment on 5-1-1956 of some Schedule 'B' properties. The appellant had obtained a preliminary decree on 25-1-1956 in his suit and a final decree on 14-9-1957. All these events had taken place before .the institution of the partition suit on 23-6-1968. But, the voluntary sale to satisfy decretal amounts was executed after this date. The second sale was an involuntary sale for realisation of dues under the provisions of Section 7 of the Land Improvement Loans Act 19 of 1883 which could be realised as arrears of land revenue. There was nothing in the sale certificate to show that the due for which properties were sold were of anyone other than <NAME> individually.

10. On the facts stated above, the appellant <NAME> claims that both kinds .of sales were outside the purview of the doctrine of lis pendens inasmuch as both the sales were for the discharge of preexisting liabilities of the Hindu joint family of which <NAME> was the karta. The liabilities incurred by <NAME>, it was submitted, as karta of the family, had to be met, in any case, out of the properties which were the subject matter of the partition suit. It was urged that where properties are liable to be sold for payment of such debts as have to be discharged by the whole family, only those properties would be available for partition in the pending suit which are left after taking away the properties sold for meeting the pre-existing liabilities of the joint family. In the, case of the sale for discharging dues under the Land Improvement Loans Act it was also contended that they obtained priority over other claims, and, for this additional reason, fell outside the scope of the principle of lis pendens.

11. The defendant-respondent <NAME> and the defendant-appellant <NAME> had both pleaded that the properties in suit were acquired by <NAME> with his own funds obtained by separate business in partnership with a stranger and that <NAME>, plaintiff, had no share in these properties. The plaintiff-respondent's case was that although the properties were joint, the liabilities sought to be created and alienations made by <NAME> were fraudulent and not for any legal necessity, and, therefore, not binding on the family.

12. <ORG> had found that the properties given in Schedule 'B' were joint family properties of which the defendant-respondent <NAME> was the <ORG> in possession. This finding was affirmed by the first <ORG> and was not touched in <ORG>. It did not follow from this finding that all dealings of <NAME> with joint family properties, on the wrong assumption that he was entitled to alienate them as owner and not as <ORG>, would automatically become binding on the joint family. A <ORG> is only authorised, to make alienations on behalf of the whole family where these are supported by legal necessity. It was no party's case that the alienations were made on behalf of, and, therefore, were legally binding on the joint family of which plaintiff-respondent <NAME> was a member.

13. <ORG> recorded a finding on which the learned Counsel for the appellant relies strongly : "There is overwhelming documentary and oral evidence to show that the sale deed Exhibit B.7 and the revenue sale are all true and supported by consideration and that the 12th Defendant would be entitled to them, if these sales were not affected by the rule of Lis pendens within the meaning of Section 52 of the Transfer of Property Act." It may be mentioned here that the 12th Defendant is no other than the appellant <NAME>, the son-in-law of defendant-respondent <NAME>, 'who had purchased the properties covered by both the impugned sales. The plea of the plaintiff-respondent <NAME> that the sales in favour of <NAME>, the 12th defendant-appellant, were fraudulent and fictitious and not supported by valuable consideration was rejected. Although, <ORG> decree for the partition included the properties covered by the two impugned sales evidenced by Ex. B.7 and B.51, yet, the Commissioner who was to divide the properties by metes and bounds, was directed to allot to <NAME>'s share, so far as possible, properties which were covered by Exhibit B.7, and B.51. This implied that the liabilities created by the decrees for whose satisfaction the sale deed dated 7-7-58 (Exhibit B-7) was executed and the revenue sale of 16-3-1960 for loans under an agreement were treated as the separate liabilities of the defendant <NAME> and not those of the joint family.

14. <ORG> as well as <ORG> had also rejected the plea that the revenue sale of 16-3-1960 to satisfy preexisting liabilities of <ORG> had any priority over the rights of the plaintiff-respondent may get in the partition suit. The result was that the partition suit was decreed subject to a direction for the allotment of the properties covered by Exhibit B. 7 and B.51 so that the purchaser may retain these properties if 'they were allotted to <ORG>.

15. <ORG> had described the sale of 7-7-1958 as a "voluntary alienation", and, thereby, placed it on a footing different from an involuntary sale in execution of a decree in a mortgage suit. The obligations incurred before the sale of 7-7-1958, by reason of the decrees in the mortgaged suits, were not on this view, liabilities which could be equated with either transfers prior to the institution of the partition suit or with sales in execution of mortgage decrees which are involuntary. So far as the revenue sale was concerned, <ORG>, after setting out the terms of Section 7 of the Land Improvement Loans Act 19 of 1883, held that only that land sold was to be excluded from the purview of the principle 'of Lis pendens /for the improvement of which some loan was taken. This meant that only that part of the loan was treated as a liability of the joint family as could be said to be taken for the joint land. It, therefore, modified the decrees of the Courts below by giving a direction that further evidence should1 be taken before passing a final decree to show what land could be thus excluded from partition.

16. The plaintiff-appellant has relied upon certain authorities laying down that the doctrine of lis pendens is not to be extended to cover involuntary sales in execution of a decree in a mortgage suit where the mortgage was prior to the institution of the suit in which the plea of Lis pendens is taken, because the rights of the purchase] in execution of a mortgage decree date back to the mortgage itself They are : <CITATION> AIR 1932 Madras 566 <CITATION> , <CITATION> and Ors. Har Prashad Lal v. <NAME> ILR 32 Calcutta 891. Reliance was also placed on the principle laid down in <CITATION> ., to contend that, since Section 52 of the Transfer of Property Act does not protect transferors, a transfer on behalf of the whole joint 'Hindu family would be outside the purview of the principle in a partition suit. The contention advanced on the strength of the last mentioned case erroneously assumes that the impugned sales were on behalf of the joint family.

17. Learned Counsel for the plaintiff-respondent has, in reply, drawn our attention to the following observations of <ORG>, Ag. C.J., expressing the majority opinion in <CITATION> . :

...the language of Section 52 has been held to be applicable not only to private transfers but also to <ORG> sales held in execution of decrees. S. 2(d) does not make S. 52 inapplicable to Ch. 4, which deals with mortgages. This is now well-settled : vide <NAME> v. <NAME> (A) and <CITATION> ) followed in numerous cases out of which mention may be made of <NAME>).

(A) (1888) 15 Cal. 756,15 I.A. 97 (B) (1898) 25 Cal. 179,24 LA. 170.

(C) (1901) 23 All. 60, (1900) A.W.N. 199.

But, as we have no actual sale in execution of a mortgage decree, this question need not be decided here. Another decision to which our attention was drawn was : <NAME> v. <NAME> and Anr. AIR 1952 Nag. 341.

18. The suggestion made on behalf of the appellant, that attachment of some schedule 'B' property before judgment in the purchaser's mortgage suit could remove it from the ambit of Lis pendens, is quite unacceptable. A contention of this kind was repelled, in <CITATION> at 211 by this Court as clearly of no avail against the embargo imposed by Section 52 of the Transfer of Property Act.

19. <ORG> had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of lis pendens cannot be extended to voluntary sales in any case. Obviously, its view was that, even where a voluntary sale takes place in order to satisfy the decretal amount in a mort gage suit, the result of such a sale was not the same as that of an involuntary sale in the course of execution proceedings where land is sold to satisfy the decree on the strength of a mortgage which creates an interest in the property mortgaged. <ORG> had observed that, as regards the satisfaction of the mortgage decree in his favour, which was part of the consideration for the sale of 7-7-1958, the appellant purchaser decree holder could get the benefit of Section 14 Limitation Act and still execute his decree if it remained unsatisfied due to failure of consideration.

20. An examination of the sale deed of 7-7-1958 discloses that it is not confined to the satisfaction of the decretal amounts. Other items are also found in it. The sale deed does not purport to be on behalf of the Hindu joint family of which <NAME> the plaintiff and <NAME> Defendant No. 1 could be said to be members. It no doubt mentions the sons of <NAME> Mudaliar but not <NAME>, plaintiff, among the sellers. At most, it could be a sale binding on the shares of the sellers. As already indicated, <NAME>, Defendant-Respondent, as well as <NAME>, Defendant-Appellant, having denied that the properties in dispute were joint, could not take up the position that the sales were binding on the whole family. <NAME>, we are unable to hold that the assumption of <ORG> that the voluntary sale could not bind the whole family, of which <NAME> was the karta, was incorrect.

21. Learned Counsel for the appellant had also relied on <CITATION> .  S.C.R. 878 That was a case in which, before the deposit of money by the- preemptors in a suit to enforce their rights to pre-emption, the vendee had sold his rights to the appellant who had an equal right of pre-emption. It was held there that the claim for pre-emption could be defeated by such a device which fell outside the purview of the principle of lis pendens. We think that this decision turns upon its own facts and on the nature of the right of preemption which, as was observed there, is a weak right. This Court had held that this weak right could be defeated by a sale which a vendee is compelled to make for the purpose of defeating the right, provided the purchaser's superior, or equal right to pre-emption had not been barred by limitation. On the question considered there, the view of <ORG> in <NAME> v. <NAME> (A.I.R. 1949 East Punj. 193) was preferred to the view of <ORG> in <CITATION> . The observations made by this Court with regard to the doctrine of lis pendens when a plaintiff is enforcing a right of pre-emption must; we think, be confined to cases of sales which could defeat preemptors' claims. It has to be remembered that a technical rule of the law of pre-emption is that the preemptor, to succeed in his suit, must continue to possess the right to pre-empt until the decree for possession is passed in, his favour.

22. As regards the revenue sale of 16-3-1960 (Exhibit B.51) we find that the sale certificate is even less informative than the voluntary sale deed considered above. Nevertheless, the view taken by <ORG> was that any land for the improvement of which loan is shown to have been, taken by <NAME> would be excluded from the purview of the, doctrine of Lis pendens. It is, however, urged that <ORG> had given effect to clause (c) of Section 7 of the Land Improvement Loans Act of 1883, but had overlooked clause (a). Here, the relevant part of Section 7 , Sub-section (1.) of this Apt may. be set out. It reads as follows :-

Recovery of loans.-(1) Subject to such rules as may be made under Section 10 , all loans granted under this Act, all interest (if any) chargeable thereon, and costs (if any) incurred in making the same shall, when they become due be recoverable by the Collector in all or any of the following modes, namely :-

(a) from the borrower-as if they were arrears of land revenue due by him;

(b) from his surety (if any) as if they were arrears of land revenue due by him;

(c) out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land;

(d) out of the property comprised in the collateral security (if any)-according to the procedure for the realization of land revenue by the sale of immovable property other than the land on which that revenue is due :

Provided that no proceeding in respect of any land under clause (c) shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgages of or persons having charges on, that interest, and where the loan is granted under Section 4 with the consent of another person, the interest of that person, and of mortgagees of, or persons having charges on, that interest.

23. <ORG> was also placed 011 Section 42 of the Madras Revenue Recovery Act of 1864 which reads as follows :

All lands brought to sale on account of arrears of revenue shall be sold free of all incumbrances, and if any balance shall remain after liquidating the arrears with interest and .the expenses of attachment and sale and other costs due in respect to such arrears, it shall be paid over to the defaulter unless such payment be prohibited by the injunction of a Court -of competent jurisdiction.

24. It will be seen that the assumption that the dues could be realised as arrears of land revenue would only apply to the interest of the borrower so far as clause (7)(1)(a) is concerned. The proviso enacts that even recoveries falling under Section 7(l)(c) do not affect prior interests of persons other than the borrower or of the party which consents to certain loans. In the case before us, the borrower had himself taken up the case that the loan was taken by him individually for the purpose of purchasing a pumping set installed on the land. It did not, therefore, follow that this liability was incurred on behalf of (the joint family unless it amounted to an improvement of the joint land. Every transaction of <NAME> or in respect of joint property in his possession could not affect rights of other members. It was for this reason that Section 7(1)(a) was not specifically applied by <ORG>. But, at the same time, the direction that the properties sold should, so far as possible, be allotted to <NAME> meant that the purchaser could enforce his rights to them if they came to the share of <NAME>.

25. The question of paramount claims or rights of the Government for the realisation of its taxes or of dues which are equated with taxes was also raised on behalf of the appellant on the strength of <CITATION> that case, the origin of the paramount right of the <ORG> to realise taxes due, which could obtain priority over other claims, was traced to the prerogatives of the British crown in India. Apart of the fact that there is no claim by the <ORG> before us, we may observe that, where a statutory provision is relied upon for recovery of dues, the effect of it must be confined to what the t -statute enacts. Even under the English law, the terms of the statute displace any claim based on prerogatives of the <ORG> vide Attorney General v. de Keyser's <ORG>  AC 508 And, in no case, can the claim, whatever its basis, justify a sale of that property which does not belong to the person against whom the claim exists. As already observed a claim under Section 7(1)(a) of the Land Improvement Loans Act of 1883 could only be made from the borrower. This meant that, unless it was proved that <ORG>, in taking a loan under the Act, was acting as the karta of the joint Hindu family of which <NAME> was a member, recovery of arrears could only be made from <ORG>'s share in the land. That this could be done was, in our opinion, implied in the direction that the properties sold should, so far as possible, be allotted to the share of <ORG>.

26. As some argument has been advanced on the supposed inapplicability of the general doctrine of lis pendens to the impugned sales, the nature, the "basis, and the scope of this doctrine may be considered here.

27. It has been pointed out, in <NAME> "On lis pendens", that, even before Sir <NAME> framed his ordinances in 1816 "for the better and more regular administration of justice in the chancery, to be daily observed" stating the doctrine of lis pendens in the 12th ordinance, the doctrine was already recognized and enforced by Common law Courts. <NAME>'s ordinance on the subject said :

No decree bindeth any that commeth in bona fide, by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill, nor the order; but, where he comes in pendente lite, and, while the suit is in full prosecution, and without any colour of allowance or privity of the court, there regularly the decree bindeth; but, if there were any intermissions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.

The doctrine, however, as would be evident from <NAME>'s work mentioned above, is derived from the rules of jus gentium which became embodied in the Roman Law where we find the maxim : "Rem de qua controversia prohibemur in acrum dedicare" (a thing concerning which there is a controversy is prohibited, during the suit from being alienated). <NAME>, in his commentaries on the lows of Scotland (2 <NAME>'s Com. on Laws of Scotland, p. 144) said that it was grounded on the maxim : "Pendente lite nibil innovandum". . He observed :

It is a general rule which seems to have been recognized in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of. real estate, a purchaser shall be held to take that estate as. it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced.

29. In the Corpus Juris Secundum (Vol. LIV-p. 570), we find the following definition :

Lis pendens literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in suit, pending the continuance of the action, and until final judgment therein.

30. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject of litigation so that parties litigating before it may not remove any part of the subject matter outside the power of the court to deal with it and thus make the proceedings infructuous.

31. It is useful to remember this background of Section 52 of our Transfer of Property Act which lays down :

During the pendency in any <ORG>...of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the <ORG> and on such terms as it may impose.

32. It is evident that the doctrine, as stated in Section 52 , applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it "by any party to the suit or proceeding, so as to affect the right of any other party thereto". Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax Collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52 . Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the <ORG> dealing with the litigation, the <ORG> may bind them to their own acts. All these are matters which the <ORG> could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the <ORG> which is dealing with the property to which claims are put forward.

33. In the case before us, the <ORG> had given directions! to safeguard such just and equitable claims as the purchaser appellant may have obtained without trespassing on the rights of the plaintiff-respondent in the joint property involved in the partition suit before the <ORG>. Hence, the doctrine of lis pendens was correctly applied.

34. For the reasons given above, there is no force in this appeal which is dismissed with costs.

<NAME>, <NAME>

35. I have had the advantage of perusing the judgment prepared by my brother, <NAME>, but as I arrive at the same conclusion by a slightly different route I am writing a separate judgment. I may give a few facts to make the judgment self-sufficient. The following pedigree may enable us to appreciate the facts :-

Muniappa <NAME> | ___________________________________________ | | | Doraiswamy <NAME> Chidambara Govindaswamy Muda- (died on 4-9-1937) <NAME> (died 1940) wife 6th Def. (died pending <NAME> 10th Def. suit) | | _____________________ __________________ | | | | | Muniswami Ayyaswami Def. 7 Def, 3 Def. 9 <NAME> (1st Def. <NAME> died pending suit) (Plaintiff) | ________________________________________ | | | | Def. 2 Def. 3 Def. 4 Def. 5 12th Def. (Jayaram <NAME>)-alinee of Def. No. 1.

36. On June 23,1956 <NAME> (Plaintiff) filed a pauper petition No. 137/1958. In the plaint he claimed a partition of B Schedule properties which, according to him belonged to <ORG> consisting of himself and the defendants. While this suit was pending, defendant No. 1-<NAME>-and four of his sons executed a sale deed (Ex. B7) in respect of some lands in Ozhaiyathur village in favour of <NAME> on July 7, 1958. These properties comprised items 5, 15 to 19, 24 and 28 of Schedule B. On July 15, 1960 a certificate of sale (Ex. B51) was issued stating that <NAME> had purchased at public auction immoveable property (described in the certificate) for Rs. 6,500/-. The property is stated to have been sold for "pumpset arrears under Hire Purchase System due by <NAME>". Exhibit B 51. covered items 4, 18, 20, 23 to 27 and 31. It is common ground that these properties, were included in the B Schedule mentioned in the plaint.

37. It is stated in the judgment of <ORG> that <NAME> .got himself impleaded as 12th defendant. He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the 1st defendant. Additional issues were framed in the suit.

38. It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24(a) and 24(b) inserted. They read :

24(a) The 12th defendant is a close agnate of the son-in-law of the 1st defendant. He executed the sham and nominal sale deed dated 7-7-1958 in favour of the 12th defendant to defeat the plaintiff's rights and to secrete the properties. It was not acted upon. It is the 1st defendant that continues to be in possession even now. The alleged sale deed is not supported by consideration. The mortgage itself was brought about to defeat any rights.'' In any event on the date of the alleged sale deed dated 7-7-1958 the mortgage decree debt was not subsisting. The plaint was filed in forma pauperis as O.P. 137 of 1958 on the file of <ORG> on 23-6-1958. Thus in any event the sale is hit by the rule of lis pendens and the sale deed dated' 7-7-1958 cannot and does not confer any rights on the 12th defendant.

24(b) The revenue sale is brought about collusively and fraudulently. There was no publication. The 12th defendant never got into possession of any property. The possession still continues to be with the 1st defendant on behalf of the joint family. The sale, is also hit by the rule of lis pendens. It also does not and cannot confer any rights on the 12th defendant.

39. Following additional issues were raised out of the pleadings of the 12th defendant :

(1) Whether the plaint B Schedule properties are joint family properties ?

(2) Whether the plaintiff is entitled to question the alienations in favour of the 12th defendant ?

(3) Whether the sale deed dated 7-7-1958. by the 1st defendant in favour of the 12th defendant true, valid and binding on the plaintiff and. is affected by LIS PENDENS ?

(4) Whether the Revenue sale by the Collector dated 16-3-1960 is liable to be questioned by the plaintiff ?

(5) Is the suit without impleading the Government liable to be questioned by the plaintiff ?

(6) Is the sale of pump set by the 1st defendant to the 12th defendant true, valid and binding on the plaintiff ?

(7) Whether the plaintiff and other members became divided from the 1st defendant after 1939 ?

(8) To what equities, if any, is the 12th defendant entitled ?

(9) Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule-properties ?

We are only concerned with issues 3 and 4 above.

<ORG> held that the sale deed, Ex. B7, and the revenue sale "are all true and supported by consideration and that the 12th defendant would be entitled to them, if these sales were not affected by the rule of lis pendens' within the meaning of Section 52 of the Transfer of Property Act". Regarding lis pendens he held that the purchases under both Ex. B7 and Ex. B51 were affected by the rule of lis pendens. <ORG> passed a preliminary decree for partition of B Schedule properties (items 2 to 31) into six equal shares. It protected the interest of the 12th defendant by stating that "as far as possible the Commissioner to be appointed in the suit for division of the properties will allot to the plaintiff's share such of the properties which are not covered by Exs. B 7 and B 51.

40. The District Judge confirmed the decree. Before <ORG>, in appeal by defendant No. 12, the only point considered was that of lis pendens. <ORG> held that Ex. B7 was a case of voluntary alienation and was hit by lis. pendens, as the sale was not in execution of a mortgage decree. Regarding Ex. B51 <ORG>, relying on <CITATION> A.I.R. 1939 Mad. 256 held that Ex. B51 would not be affected by lis pendens, as the loans were granted under the Land Improvement Loans Act to the extent that the loans were taken for the improvement of the properties. As it had not been considered whether all the properties which were sold in revenue sale and conveyed under Ex. B51 were lands for the improvement of which loans were taken, <ORG> directed :

In the final decree proceedings, the trial court were to consider what were the properties for the improvement of which the loans under the Land Improvement Loans Act were taken by the first defendant, in respect of those properties alone the doctrine of lis pendens will not apply. In respect of other properties, the doctrine of lis pendens will apply. The trial court take evidence for the purpose of deciding the properties in respect of which the loans under the Land Improvement Loans Act were taken.

With this modification <ORG> dismissed the appeal.

41. Defendant No. 12 applied for a certified copy of the Judgment and Decree on July 22, 1968, and these were made ready on August 9, 1968 and delivered on August 12, 1968. Defendant No. 12 moved <ORG> by letter dated August 22, 1968 "requesting the posting of the appeal for being mentioned for the purpose of the issue of the Certificate for leave to appeal under the Letter Patent". The learned Judge who heard the appeal by his order dated September 6, 1968 refused the leave on the ground that the leave was not asked for immediately on delivery of judgment and that it could not be asked for afterwards.

42. Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side, 1965 under which the leave asked for was refused reads :

28. When an appeal against an appellate decree or order has been heard and disposed of by a single judge, any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered.

43. This <ORG> granted special leave.

44.At the outset, Mr. <NAME> raised the preliminary objection that the appeal was incompetent as Defendant No. 12 failed to ask for certificate orally and immediately after the judgment was delivered. The learned Counsel for Defendant No, 12 urged that Rule 28 of Order 4 was ultra vires. Two points thus arise out of the contentions of the parties :

(1) Is Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side ultra vires ?

(2) Are the Sales by Ex. B7 and Ex. B51 hit by the rule of lis pendens ?

45. Clause 15 of the Letters Patent inter alia provides for an appeal to <ORG> from a judgment of one judge made in exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to its superintendence, where the Judge who passed the judgment declares that the case is a fit one for appeal. Clause 37 of the Letters Patent confers powers on the- High <ORG> to make rules and orders for the purpose of regulating all proceedings in civil cases. This <ORG> held in <CITATION> that under Clause. 27 of the Letters Patent which is in similar terms as Clause 37 mentioned above, <ORG> of Judicature at Lahore had the power to make a rule prescribing the period of limitation in respect of appeals from Orders made by that <ORG> in exercise of its original jurisdiction to <ORG> of that <ORG>. It seems to me that <ORG> can equally frame a rule regulating the time at which and the manner in which the application for a certificate shall be made. Rule 28 of Order 4 does not take away any right conferred by Clause 15 of the Letters Patent. It only regulates the manner of the exercise of that right. It was said that the rule unduly restricts the right of the litigant to peruse the judgment and make up his mind whether to appeal or not. But if the declaration is made immediately by the Judge that the case is fit one for appeal there is nothing, to prevent the litigant from not filing the appeal if he considers it inadvisable to do so.

46. I need not discuss the point whether the Judge will have the right to condone a breach of the Rule because no application seems to have been made to condone the breach of the Rule. But this conclusion does not render the appeal before us incompetent. Leave was given by this Court after hearing the respondents, on October 14, 1968. On April 22, 1969 the respondents obtained an order from this Court for expediting the hearing. No application was made at that stage to raise the point of incompetency of appeal. In the circumstances I consider that the appeal should be disposed of on merits.

47. Coming to the second point, this Court has considered the scope of Section 52 of the Transfer of Property Act and the rule of lis pendens in a number of cases. There is no difficulty in holding that Ex. B7 falls within the provisions of Section 52 of the Transfer of Property Act. But Ex. B51 stands in a different position. It was held in <CITATION> , 28 that the principle of lis pendens applies even to involuntary alienations like court sales. <NAME> observed :

The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that . since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in <NAME> the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales. But it is well-established that the principle of lis pendens applies to such alienations. [See Nilkant v. Suresh Chandra 12 I.A. 171 and Motilal v Karrabuldin (24 I.A. 170).]

48. These observations were referred to with approval by this Court in <CITATION> . If the principle of lis pendens applies to court auctions there is no reason why it should not apply to revenue sales. But the effect of the application of the principle may vary according to the nature of the pro visions under Which the revenue sale is held. The principle of lis pendens does not affect pre-existing rights. If there is a valid charge or mortgage on a property, this does not vanish because the property becomes the subject-matter of a partition suit. In this case according to defendant No. 12 a valid charge subsisted on the lands by virtue of the provisions of the Land Improvement Loans Act . Under Section 7 of the Land Improvement Loans Act loans are recoverable by the Collector in all or any of the following modes, namely :

(a) from the borrower as if they were arrears of land revenue due by him;

(b) ...

(c) out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land;

(d) ...

49. The proviso to Section 7 reads :

Provided that no proceeding in respect of any land under clause (c) shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgagees of, or persons having charges on, that interest, and where the loan is granted under Section 4 with the consent of another persons, the interest of that person, and of-mortgagees of, or persons having charges on, that interest.

50. Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances. The liability of the land to be sold under Section 7(c) of the Act was a pre-existing charge and that subsisted as from the date of the loan. This was not affected by the institution of the suit for partition. This charge could be enforced by the <ORG> notwithstanding the pendency of the partition suit. No decree in the Partition suit could have effaced the charge. Therefore, if the <ORG> has sold only the property in respect of which loan was taken, the purchaser-defendant No. 12-is not prejudiced by the principle of lis pendens. Therefore, the direction of <ORG> was right insofar as it directed <ORG> to separate the properties for the improvement of which the loans under the Land Improvement Loans Act were taken, from the other properties.

51. In the result the appeal fails and is dismissed.


JUDGMENT Spankie, J.

1. In my opinion the decree-holder was bound strictly by the terms of the decree. When the first default occurred, under the wording of the decree, he was bound to execute it in one lump. The instalment arrangement then ceased. If the decree-holder chose to continue to receive instalments, he did so at his own risk. When the acknowledgment of the balance due was made, it seems to me that the decree was already dead, and could no longer be executed. Though the cases cited <NAME> v. <NAME> 13 W.R. F.B.44; and <CITATION> 24 W.R. 282 may not be strictly in point, the principle upon which they proceed applies to this case. I would decree the appeal and reverse the order of the <ORG> below with costs.