S.C. Ghose, J.

1. The facts out of which this appeal arises are shortly asfollow: The present defendant brought a suit in the year 1832 against one PranGour for the recovery of possession of certain lands. Pending the suit in theCourt of first instance, the right, title and interest of Pran Gour were soldin execution of a decree passed against him, and were purchased by the presentplaintiff on the 20th of June 1882. Subsequently to this, that is, on the 13thDecember 1882, the abovementioned suit against Pran Gour was dismissed by theCourt of first instance. The present defendant thereupon appealed. Thepurchaser at the execution sale, namely, the present plaintiff, was not made aparty to the appeal; but there is no evidence to show that the defendant knewof the plaintiffs purchase. On the 26th of September 1883 the appellate Courtreversed the decree of the Court of first instance, and gave judgment in favourof the present defendant. The present suit is by the plaintiff, asauction-purchaser of the right, title and interest of Pran Gour, against the defendantfor ejectment: and the question that was raised in the Courts below was whetherthe doctrine of lis pendens was applicable to this case. The lower appellateCourt has held that it is applicable, and has accordingly dismissed the suit.For the appellant it has been contended by Dr. Rasbbehari Ghose that thedoctrine of lis pendens does not apply to this case: first, because the sale atwhich the present plaintiff purchased was a sale by a Court in execution of adecree, and not a voluntary sale by the judgment-debtor; and, second, becausethe decree of the Court of first instance, passed in the previous suit on the13th of December 1882, was to all intents and purposes a final decree in thesaid suit until it was reversed on appeal; and as the plaintiff was not made aparty to the appeal preferred by the defendant against that decree, it ought tobe taken that the decree now relied upon by the defendant, viz., the decree ofthe appellate Court, is not binding on the plaintiff.

2. As to the first branch of this argument it appears to usthat, so far as the decisions of this Court are concerned, it has almostinvariably been held that the doctrine of lis pendens does apply even to thecase of an auction-purchaser; and we do not see any reason to differ from thosedecisions. The learned vakeel for the appellant has, however, very stronglyrelied upon the decision of the Privy Council in the case of Anundo MoyeeDossee v. Dhonendro Chunder Mookerjee 14 M.I.A. 101 : 8 B.L.R. 122 : 16W.R.P.C. 19; and he has contended that the observations made by the JudicialCommittee in their decision indicate that in a case like the present thedoctrine of lis pendens cannot, and ought not, to apply. It will, however, beobserved, upon a consideration of that case, that the facts upon which theobservations relied upon by Dr. Rashbehari Ghose were made were whollydifferent from the facts of the case which we have now to deal with; and itseems to me that their Lordships of the Privy Council were in no way calledupon to express, nor did they express, any opinion whatever on that occasionupon the question with which we are now concerned, On turning to the report ofthe case as is given in Moores Indian Appeals, it would appear that a decreefor sale was passed by the Supreme Court at Calcutta upon a mortgage deed bywhich certain properties in the mofussil were mortgaged ; that in execution ofthis decree the said properties were sold, and the plaintiff became thepurchaser. While the suit in which the said decree was passed was pending, inexecution of another decree against the mortgagor, which was a money decree,his right, title and interest in those properties were sold and were purchasedby the defendant; and the question that came up before the Judicial Committee wasa question that was raised between these two purchasers. It was contendedbefore the Judicial Committee that the sale to the plaintiffs was a sale in asuit for foreclosure of a mortgage, and that the suit for foreclosure havingbeen instituted prior to the sale at which the defendant made his purchase, thelatter was bound by the decree for foreclosure in exactly the same manner as ifhe were a party to the foreclosure suit. With reference to this contention,their Lordships of the Privy Council say: "There is no foundation whateverfor the claim so put, that the case to which they have been referred-The Bishopof Winchester v. Paine 11 Ves. 194-has really no relation to any case of thiskind. That case merely determines this-that where there is a suit forforeclosure, and the mortgagor, a defendant to that suit, makes a voluntaryalienation, pending the suit, of any part of his interest in the equity ofredemption, a purchaser will not be allowed afterwards to institute a new suitfor a new foreclosure, the ground being that, if that were permitted,proceedings in a foreclosure suit would be endless, because every day a freshalienation might be made in some parts of the proceedings. But that was simplya foreclosure suit and the subsequent mortgagee would be barred frominstituting any new suit in the Court of Chancery for the purpose of enforcingthe equity of redemption. But no suit of foreclosure ever proceeded actively,or ever was made to work actively, against a party who was not before theCourt. That case simply decides that subsequent mortgagees of an equity ofredemption are bound by a foreclosure suit. This, however, was not aforeclosure decree. It was a decree for sale, and a decree for sale made in theSupreme Court at Calcutta had no effect whatever in rem, as it had no effectwhatever over the property in the mofussil. The decree for sale was merely adecree in substance that the parties to the suit should concur in conveying andselling the property to a purchaser, and no such decree for sale could have anyoperation whatever upon the title of persons in the mofussil who were noparties to the suit. Therefore it appears to their Lordships that the view ofthe case presented to them based upon the case of The Bishop of Winchester v.Paine, has really no application to the subject-matter of this suit."

3. Reading these observations by the light of the facts ofthe case, it appears to me that they have really no application whatever to thequestion we are now called upon to determine, that question being whether thedoctrine of lis pendens applies to the present plaintiff, who, according to thecontention of the present defendant, made his purchase during the pendency ofthe suit, in the course of which the decree, awarding possession of the landsto the defendant, was eventually made. The view that we now take, namely, thatthe doctrine of lis pendens does apply, has been taken, as I have already said,in several cases in this Court, that is, in the cases of Raj Kishen Mookerjeev. Radha Madhub Holdar 21 W.R. 349; Jharoo v. Raj Chunder Dass 12 C. 299; and arecent case, namely, Kally Dass Mookerjee v. Sheik Arshad Appeals fromAppellate Decrees No. 54 to 57 of 1886, unreported decided on the 7th December1886, by the present Chief Justice and Mr. Justice Beverley. We think we oughtto follow these rulings, and hold that the doctrine of lis pendens does applyto an auction-purchaser such as the plaintiff is.

4. As to the second branch of the argument pressed beforeus, we had at first some doubts, but after hearing the respondents vakeel wethink we ought to hold that the appellant must fail. The decree passed in thesuit was the final decree pronounced on the 20th of September 1883. Theproceedings in 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 that the doctrine of lis pendens doesapply to the case.

5. The result is that this appeal must be dismissed withcosts.

.

Gobind Chunder Royvs. Guru Churn Kurmokar(09.11.1887 - CALHC)