1. This is an appeal on behalf of the first Defendant in asuit for recovery of possession of a holding which admittedly belonged at onetime to a man named Kudutulla. On the 22nd May 1893, Kudutulla mortgaged theholding to one Uma Sundari Dasi. The mortgagee sued, in 1897, to enforce thesecurity, and obtained a decree on the 7th July 1897. The decree wassubsequently transferred to the Plaintiff, who took out execution thereof asassignee. The holding was purchased by the Plaintiff at the execution sale onthe 22nd December 1904, and possession was delivered by Court on the 1st June1905. Meanwhile the first Defendant had purchased the holding from themortgagor Kudutulla on the 31st August 1904; he resisted the Plaintiff who wasunable to obtain actual possession of the holding from him. The result wasthat, on the 10th May 1907, the Plaintiff commenced this action for recovery ofpossession. The first Defendant alone appeared and contested the claimsubstantially on the ground that the mortgage, the decree thereon and thesubsequent sale were collusive and fraudulent. As regards his own purchase, headded that he had not been able to secure recognition from the landlord. TheCourt of first instance held upon the evidence that as the mortgage representeda genuine transaction, there was practically no defense to the suit. The Courtfurther held that the Defendant was not entitled to show that he hadsubsequently obtained recognition from the landlord and thus to raise thequestion of the transferability of the holding. The result was that a decreefor possession was made in favor of the Plaintiff. The Defendant then appealedto the Subordinate Judge, and argued that an issue ought to have been raisedupon the question of transferability of the holding. This contention wasoverruled, and the decree of the Court of first instance was affirmed on the4th August 1908. The first Defendant has now appealed to this Court, and on hisbehalf the objection taken in the Courts below has been reiterated. Thesubstantial question in controversy, therefore, between the parties to thisappeal is, whether or not, in the events which have happened, the firstDefendant is entitled to raise the question of transferability. Now, in thefirst place, it is well settled that when a non-transferable holding has beensold by a tenant under a conveyance he is, as between himself and thetransferee, stopped from setting up the invalidity of the sale by him[Bhagirath Changa v. Hafizuddin 4 C. W. N. 679 (1900).]. The same doctrineapplies as between mortgagor and mortgagee [Krishna Lal v. Bhoirab Chandra 2 C.L. J. 19n (1905)]. This position may be supported on the principle explained inthe case of Debendra Nath v. Mirza Abdul 10 C. L. J. 150 (1909), that amortgagor is stopped from denying the mortgagees title and the existence ofthe lien which he has created, or from defeating its en-for cement against theproperty upon which it was placed. Consequently, in the case before us, neitherthe mortgagor nor the first Defendant, as his representative in interest, canchallenge the validity of the title of the Plaintiff as based on the mortgage.The position of the 1st Defendant is further affected by the circumstance thathe purchased pendente lite, because as explained in the case of Surjiram v.Berhamdeo 2 C. L. J. 288 (1906) in the case of a mortgage suit, the liscontinues after the decree nisi, and the doctrine of lis pendens is applicableto proceedings to realize the mortgage after the decree for sale. Prima facie,therefore, the Defendant is not entitled to question the validity of themortgage, and this view is supported by the case of Ayenuddin v. Srish Chander11 C. W. N. 76 (1906) which is not distinguishable from the case before us.That case again is in accordance with the earlier decision in Ambika v. Aditya6 C. W. N. 624 (1905), and was accepted as good law in Hari Das v. Udoy Chandra12 C. W. N. 1086: s. c. 8 C. L. J. 261 (1908) though the decision in thislatter case was subsequently set aside upon a different point [Udai Chandra v.Hari Das 10 C. L. J. 608: s. c. 13 C. W. N. 937 (1907)]. We are not prepared todissent from the decision in Ayenuddin v. Srish Chander 11 C. W. N. 76 (1906)which completely covers the case before us, and has been recently followed inSamiruddin v. Benga 13 C. W, N. 630 (1909)., though it may be difficult toreconcile it with Achanulla v. Salemonnessa 9 C. W. N. 24n (1904) where thedecision was based on the doubtful ground that the execution purchaser of theinterest of the tenant was not bound by the same estoppels as the tenanthimself. It has been suggested, however, that when during the pendency of thissuit, the Defendant alleged that he had obtained recognition from the landlordhe ought to have been allowed to prove it and thus to place himself in theposition of the landlord who, it cannot be disputed, is entitled to raise thequestion of transferability. In support of this view reference has been made tor. 5 of or 8 of the Civil Procedure Code of 1908, which provides that anyground of defense which has arisen after the institution of the suit may beraised by the Defendant in his written statement. This rule is of no assistanceto the Appellant. In the first place, it was not in force when this case wastried in the original Court or in the Court of Appeal below. In the secondplace, even if it had been in force, it would be of no avail, because thecircumstance alleged by the Defendant happened after he had filed his writtenstatement in which he stated explicitly that his purchase had not been up tothat time recognized by the landlord. Consequently there is no occasion for anyapplication of the principle recognized in Rupchand v. Sarveswur I. L. R. 33Cal. 915: s. c. 3 C. L. J. 629 (1906) and Bepin Behary v. Tin Cowrie 13 C. L.J. 271 (1911). On the other hand, the principle applicable to this case is laiddown in Radheay Koer v. Ajodhya Das 7 C. L. J. 262 (1907), where it is pointedout that, although, in some instances, a Court will take notice of events whichhave happened subsequent to the institution of the suit [Ramratan v. Mohant 6C. L. J. 74 (1907), Hazari v. Janaki 6 C L. J. 92 (1907), Ramyad v. Bindeshwari6 C. L. J. 102 (1907) Udit v. Rashika (17)], it will not dismiss a claim forrecovery of possession on the ground that the right set up by the Plaintiff isalleged to have been subsequently nullified by the Defendant during thependency of the suit. On a review, then, of the authorities, it is clear thatthe preponderance of judicial opinion is in favors of the view that the questionof transferability does not arise in the present suit between the Plaintiff asthe mortgagee purchaser of the interest of the tenant and the first Defendantas private purchaser from the same person.

2. The result, therefore, is that the decree made by theCourt below is affirmed, and this appeal dismissed with costs.

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Shyama Charan Bhattacharyavs. Mokhuda Sundari Debi(02.03.1911 - CALHC)