AI Structured Summary
Not yet generated for this judgment
Judgment
Both the courts below are in error in holding. that the first defendant''s purchase is not. governed by the doctrine of lis pendens. It was held in
Raj Kishen Mookerjee v. Radha Madhub Holdar (1874) 21 W.R. 349 that a purchaser under an execution was bound by lis pendens, and the
same opinion was expressed by this Court in Manual Fruval v. Sanagapalli Latchmidevamma (1872) 7 M.H.C.R. 104, in which the plaintiff made
his purchase at an execution sale held by a District Munsif. The. result is that the 1st defendant must be treated as if he were a party to the
plaintiff''s suit and bound by the decree and the execution proceeding therein.. But it is urged that prior to the date of the plaintiff''s suit there was an
attachment made by the 1st defendant, that a claim was preferred by the plaintiff and that the property under attachment was thereupon ordered to
be sold subject to the mortgage. These proceedings created only a power in the judgment-creditor in Original Suit No. 472 of 1879 to bring the
mortgagor''s equity of redemption to sale, and the judgment-creditor had, as was held by Mr Justice Wilson in Soobhul Chunder Paul v. Nitye
Churn Bysack ILR (1880) C. 663 no right to redeem as a subsequent incumbrancer. It was by the sub-sequent purchase that such right was
created, and the purchase was subject to the doctrine of lis pendens. The first defendant ought to have paid the amount under the mortgage decree
and prevented the sale in execution in the same way in which the mortgagors might have done. It is no doubt true that the purchase had reference
to the order that the property might be held subject to the 1st mortgage, but the order did not create a right to redeem which came [into existence
only after the purchase. The fact that the mortgagee knew of the order makes no difference as he only sought to enforce his mortgage, which he
was legally entitled to do, and no notice of the suit was necessary to the 1st defendant who is sought to be affected by lis pendens. We may
observe in that Manual Fruval v. Sanagapalli Latchmidevamma (1872) 7 M.H.C.R. 104 there was also an attachment and the doctrine of lis
pendens was nevertheless held applicable.
The decree of the courts below are therefore set aside and the plaintiff''s claim is decreed with costs. The mesne profits throughout claimed will
be ascertained in execution and awarded to the plaintiff.