Authored By : Robert Fulton Rampini, J. Pratt

Robert Fulton Rampini and J. Pratt, JJ.

1. The facts of this case are as follows:--The pntiffs suefor a declaration that a certain plot of 2 bighas of land with the buildingthereon is their property by right of purchase on the 28th December 1892 at anexecution of a decree obtained against Suleman Bukt. They further pray that thedefendant may be restrained from selling this property in execution of amortgage-decree obtained by the defendants predecessor against PrinceRahimuddin. The defendant s predecessor sued Prince Rahimuddin on an equitablemortgage, and obtained a decree on the 6th October 1890. Subsequently PrinceRahimuddin died, and his heirs, including his son Suleman Bukt, weresubstituted at their own request as defendants in the mortgage case. Afterwardsthe mortgage-decree was made absolute; upon which, that is, on the 12thNovember 1892, Suleman Bukt raised an objection that the property belonged tohim in his own right. This objection was allowed by the Subordinate Judge ofthe 24-Parganas. The plaintiffs thereafter, as already mentioned, purchased theproperty. Then, on the 20th February following, the decree in the executioncase was prepared, and an appeal was preferred to this Court, which wassuccessful on the 18th June 1894. It was held by this Court on the facts thatthe property in dispute was not the property of Suleman Bukt in his personalcapacity. Now the Lower Court has held (1) that the plaintiffs as thepurchasers of Suleman Bukts rights are bound by the decision of this Court,dated the 18th June 1894," and (2) that in any case the plaintiffspurchased pendente lite, and accordingly acquired no right in the property.

2. Dr. Rash Behary Ghose on behalf of the appellantscontends that the Judges decision on both points is wrong. We, however, cannotagree with him. In the first place, as the learned pleader for the appellantadmits, it makes no difference that the appellant purchased the right ofSuleman Bukt at an execution sale, and not at a private sale. See GobindChunder Roy v. Guru Churn Kurmokar I.L.R (l881) . 15 Cal. 94 [LQ/CalHC/1887/106] . In the secondplace, as the appellants purchased the rights of Suleman Bukt, and are in everyway his representatives in interest and as will presently be shown, theypurchased pendente lite, and as the proceedings in which Suleman Buktsobjection was disallowed, though subsequent to their purchase, were yetproceedings which they "might expect would take place" [seeKasumunnissa Bibee v. Nilratan Bose I.L.R (1881) . 8 Cal. 79 (85.) See alsoKailas Chandra Ghose v. Fulchand Jakarri (1871) 8 B.L.R. 474 they are as muchbound by a decision against Suleman Bukt, though personally no parties to it,as he, Suleman Bukt himself, is. It is true that the question which SulemanBukt was allowed by the Subordinate Judge of the 24-Parganas to raise, was onewhich as the substituted heir of his father Prince Rahimuddin he perhaps shouldnot have been allowed to raise; but he did raise it of his own accord, and heis bound by the ultimate decision of the objection, and the appellants as hisrepresentatives in interest and purchasers pendente lite are equally bound byit.

3. It has, however, been urged that the appellants purchasedat a time when Suleman Bukts objection had been allowed, and when no appealagainst the Subordinate Judges order had been preferred. We have been referredto the terms of s. 52 of the Transfer of Property Act which prohibits thetransfer of property during "the active prosecution " in any Court ofa contentious suit relating to such property. It is said that when theappellants purchased, the suit of the defendant was not being "activelyprosecuted." Dr. Rash Behary Ghose has also referred us to Sugden onVendors and Purchasers, p. 758, and to other English authorities.

4. But we are of opinion that the only reason why an appealhad not been preferred against the Subordinate Judges order of the 12thNovember 1892 at the time when the appellants purchased was because the decreehad not been prepared. The appeal, "the inevitable appeal," as theLower Court correctly describes it, was preferred without undue delay after thedecree had been drawn up on the 20th February 1893: We therefore consider thatthe appellants in this case may be said to have purchased during the"active prosecution" of the suit.

5. Then, as to the English authorities cited by Dr. RashBehary Ghose, we would only say that the law of lis pendens in England isdifferent from that prevailing in this country. The law of lis pendens in thiscountry is founded on the fact that it would be impossible to bring any suit toa successful termination if alienations pendente lite were permitted toprevail.

6. The case of Gobind Chunder Roy v. Guru Churn KurmoharI.L.R (1887) . Cal.94 is directly in point. In that case, the facts of whichare very similar to those of the present one, it has been said:--"Theproceedings of the Appellate Court were but a continuation of the proceedingsin the suit, and although for a time there was a decree in favour of thepresent plaintiffs predecessor in title, yet that was a decree which was opento appeal, and the decree having been appealed against, we ought to take itthat the decree of the Appellate Court was the decree in the suit, and the saleat which the plaintiff purchased having taken place pending the suit in whichthat decree was pronounced, we think the doctrine of lis pendens does apply tothe case." Other cases of this Court on the subject are Inderjeet Kooer v.Pootee Begum (1873) 19 W.R. 197 Chunder Koomar Lahooree v. Gopee KristoGossamee I.L.R. (1873) 18 Cal. 188 and Kishory Mohun Roy v. Mahomed MujaffarHossein I.L.R (1890) . 18 Cal. 188 . See also Moti Lal v. KarrabuldinI.L.R(1897) . 25 Cal. 179 :(185) L.R., 24 IndAp 170 . These on the wholesupport the view we take of this case.

7. We therefore dismiss the appeal with costs.

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Dinonath Ghose and Ors. vs. Shama Bibi (01.06.1900 - CALHC)