(prayer: Appeal (disposed of on 11-11-1949) against the decree of the City Civil Court, Madras, dated 24-9-1947 in O.S. No. 42 of 1946.)

The question in this case on facts not in dispute is whether, in execution of the personal liability clause of a decree creating that liability as well as a charge liability for payment of money, when the property charged is attached and sold pursuant to the attachment, a purchaser prior to the auction sale but after the date of the decree who has no notice of the charge at the time of his purchase is affected by the doctrine of lis pendens and is therefore bound to fail in a later suit against him in enforcement of the charge. The Court below answered the question in the negative; the plaintiff, the charge-holder, appeals against its judgment and decree refusing to recognize his right as superior to that of the defendant who became the purchaser admittedly after the date of the decree in the former suit but before the plaintiffs purchase in execution of that decree.

It is contended by the learned Advocate for the appellant that notwithstanding the decree and subsequently thereto the lis continued down to the date of the auction sale in the plaintiffs favour and that that sale must prevail over the defendants purchase. The auction sale in the plaintiffs favour was however not in pursuance of the charge part of the decree but in execution, by way of attachment, of the personal liability part of the decree and was long after the sale in the defendants favour. This argument cannot therefore be accepted. Reliance is placed for the appellant on the decision in Sowbagya Ammal v. Manicka Mudaliar (33 M.L.J. 601 = 6 L.W. 701). That case however raised no question of lis pendens but only decided that the charge involved in a decree directing maintenance to be paid out of certain property can be enforced by a sale of the property in execution of the decree and that the decree-holder ought not to be referred to a separate suit in as much as, the charge being one created by the decree itself, there was and could be no question of any decree obtained by the charge-holder in satisfaction of a claim arising under the decree and no question consequently of any infringement of the prohibitory provision contained in O. 34, R. 14 of the Civil Procedure Code. The Privy Council ruling in Gowri Dutt Maharaj v. Sheik Sukur Mohamed (1948 (2) M.L.J. 79 (P.C.) to which my attention has been drawn by the learned Counsel for the appellant is of no assistance either, as it only recognizes the applicability of the doctrine of lis pendens to alienations made during the pendency of a suit later bona fide compromised and emphasizes the broad principle of S. 52 of the Transfer of Property Act to be that it seeks to maintain the status guo unaffected by the act of any party to the litigation pending its determination.

It is contended that the charge operates as in existence prior to the purchase by the defendant and that the Court below ought to have granted the alternative relief asked for in the plaint. The answer to that given by the defendant is that he is a purchaser without notice protected by S. 100 of the Transfer of Property Act. I notice that there is a conflict of judicial opinion on the question whether a charge created by a decree of Court falls within the category of charges arising by operation of law as contemplated by S. 100. The Madras view however which is found in Venkatachala v. Rajaaopala (A.I.R. 1946 Mad. 51) [LQ/MadHC/1945/172] is that such a decree falls within that category. That decision is in a line with the view of the High Court of Bombay and of the Chief Court of Oudh, although in conflict with the view of the High Court of Nagpur, I agree with that decision although only of a single Judge, Bell, J., not merely because in the interests of judicial comity I should like to agree with it even if I happen to entertain a doubt about its correctness but also because I consider that it is perfectly correct. But then, the plaintiff urges, relying on Rajagopala Chetti v. Kesava Pillai (1945 (1) M.L.J. 57-I.L.R. 1945 Mad. 726=58 L.W. 14) that the words any law for the time being in force occurring in the saving clause of the second part of S. 100 are sufficiently wide to take in S. 52, that the legislature could never have intended to qualify the operation of the doctrine of lis pendens by the amendment to S. 100: and that S. 100 cannot be read without regard to what is said in S. 5

2. The rulings in Kulandaivelu Pillai v. Sowbagyammal(1945 (1) M.L.J. 261) and Ramachandra v. Kamalabai (A.I.R. 1944 Bom. 191) [LQ/BomHC/1943/82] , are also cited as to the same effect. It does not appear that the cases cited related to a declaratory charge decree as distinguished from an executable charge decree; but that does not in my opinion however make any difference to the result in law. The explanation to S. 52 makes it perfectly clear that the lis continues till after the complete satisfaction or discharge of the decree has been obtained. It seems to me that no complete satisfaction or discharge of even a declaratory charge decree can be predicated so long as the possibility of the enforcement of the charge by way of a separate suit remains. Further, such satisfaction as may have resulted in the present case from the execution sale under the personal liability clause of the decree becomes nullified, the moment the claim of the defendant is recognized and the decree as a whole stands normally restored to excitability in that view. That being so I have no hesitation in allowing this appeal with costs here and in the Court below.

The result is that the case will have to go back to the Court below for the passing of a preliminary decree on the basis of the alternative relief in the plaint with reference to the enforcement of the charge. The appellant is entitled to a refund of the court-fee paid on the memorandum of appeal here which he shall have.