On 6th October, 1888, a suit (O. S. No. 1 of 1889) was filed by a Hindu widow for maintenance. As to one of the defendants (14th) impleaded in that suit, she alleged that he held a mortgage over a portion of the property sought to be charged with the maintenance and that the said mortgage was obtained fraudulently and without consideration, was not for family benefit and could not affect her right to charge the maintenance on the mortgaged property. The 14th defendant pleaded that he held two hypothecation bonds from the 1st defendant and that he had sued on the later in O. S. No. 16 of 1887, and obtained a decree (on 28th September, 1897).
The District Judge found that the plaintiff had no cause of action against the 14th defendant. He gave a decree for maintenance which was made a charge against the interests of defendants 1 and 2 in the plaint properties, subject to the lien claimed by the 14th defendant among others. (22nd September, 1890). Meanwhile, in execution of O. S. No. 16 of 1887, the mortgaged property was sold on 28th November, 1889, and the decree-holder purchased it and obtained delivery on 25th December, 1889. The respondents before us are his assignees.
In execution of the maintenance decree, the same property was sold on 10th March, 1920 and the purchaser obtained delivery on 19th July, 1920. He is the appellant before us. Objection was made by the respondents to the delivery and the matter came up to this Court under Sect. 47, Civil Procedure Code, in C. M. A. No. 11 of 1921. The two learned Judges who heard it having differed, the appeal was dismissed under Sect. 98, Civil Procedure Code. Hence this Letters Patent Appeal.
The appellant, while conceding that his purchase was subject to the mortgage of the 14th defendant, in O. S. No. 1 of 1889, claims that he can ignore the sale, in execution of O. S. No. 16 of 1887 and contends that his purchase is valid, subject to the mortgage, which he is entitled to redeem. This contention is raised in two forms:—
(1) That the decree-holder in O. S. No. 1 of 1889, was in the position of a second mortgagee and that the first mortgagee not having impleaded her in the sale proceedings of O. S. No. 16 of 1887, he is still liable to be redeemed by the second mortgagee, or by the appellant, who is subrogated to the second mortgagee's rights. It is true that, when a first mortgagee sues on his mortgage, without making a second mortgagee a party, brings the property to sale and purchases it in execution, the right of the second mortgagee to redeem the first mortgage is not extinguished by the proceedings in such a suit, to which he was not a party. Mulla Vittil Seethi v. Achuthan Nair(1). But the principle cannot apply in this case, as the so called second mortgage did not exist either at the time of the suit or decree (O.S No. 16 of 1887) or even at the time of the sale in execution of the decree. The charge granted by the maintenance decree in O.S No, 1 of 1889, came into existence, only at the date of the decree and not earlier. The charge can be made use of, as if it existed at the date of the plaint, only by the principle of lis pendens. This leads to the next contention.
(2) By the doctrine of lis pendens, the 14th defendant, in O. S. No. 1 of 1889, was prohibited from dealing with the property or selling it in execution, [Kunhi Umah v. Amed(2)], which was the subject of the maintenance suit, [Dose Thimmanna Bhutta v. Krishna Tantri(3)], so as to affect the rights of the plaintiff under the decree therein. The appellant contends that the sale in execution of O.S No. 16 of 1887, if upheld, will so affect the plaintiffs' right, under the decree in O. S. No. 1 of 1889. This contention cannot be accepted. In O. S. No. 1 of 1889, it was held that the plaintiff had no cause of action against the 14th defendant, that his mortgage was perfectly valid and the charge given to the plaintiff was subjected to his rights. The decree used the word ‘lien’ but as the judgment made no distinction between the mortgage and the decree (which was also known to the Court), obviously all the rights of the 14th defendant under his decree were intended to be saved. This is the natural and proper construction of the decree, in the light of the findings in the judgment and the pleadings. That being so, it cannot be said that the sale in execution of O. S. No. 16 of 1887 affects the rights of the plaintiff in O.S No. 1 of 1889, under the decree, which saved the rights of the decree-holder in O.S No. 16 of 1887. The consideration, that the effect of this conclusion is to make the lien obtained by the decree-holder, in O.S No. 1 of 1889, illusory, so far as the property mortgaged to 14th defendant was concerned, cannot affect the construction of the decree, which expressly saved the rights of the 14th defendant and cannot, by implication adversely affect such rights, simply because it purported to give a charge to the plaintiff on the interests of defendants 1 and 2, which had ceased to exist.
The appeal is dismissed with costs.
Letters Patent Appeals Nos. 11 and 12 follow and are dismissed. Letters Patent Appeal No. 12 with costs.
C.KAppeals dismissed.