1. This judgment governs Miscellaneous (First) Appeal No. 242 of 1939 and Miscellaneous (First) Appeal No. 268 of 1939. There are four brothers, Sitaram, Ganpati, Balaji and Dewaji. Of these Balaji was in possession of the property of their agnate Narayan in virtue of an alleged adoption; but his natural brothers brought a suit against him for partition of the property on the ground that he was not Narayan's adopted son. This suit was filed on 4th April 1928. It was dismissed by the trial Court but decreed on appeal by the Court of the Judicial Commissioner on 1st April 1933 on the following terms:
“It is ordered that the decree of the lower Court be set aside and a decree for the plaintiffs declaring them entitled to possession of a ¾th share of the property in suit and directing a partition be passed.”
2. The successful plaintiffs made an application for execution on 19th February 1936 to be placed in possession of a ¾th share of the property mentioned in the schedule attached to the execution application. It appears that a warrant was issued for delivery of the ¾th share of the property, and that obstruction took place on the part of the appellant Tilokchand. An application was made under O. 21, Rr. 97 and 9S of the CPC, by the decree-holders complaining of obstruction, and this application was dismissed on the ground that the resistance was made by a person claiming to be in possession of the property on his own account. Tilokchand and the other applicants had purchased part of the property which was the subject-matter of the decree, while the suit was pending. The decree holders then applied to the High Court in revision (civil Revn. No. 105 of 1937, 1) and it was held by one of us (Niyogi J.) that as the person offering resistance was alleged to be a transferee pendente lite, O. 21, R. 99 had no application in view of O. 21, R. 102. The applicants were therefore allowed by the High Court to withdraw their application complaining of resistance and to proceed under O. 21, R. 11, against the persons against whom execution of the decree was sought, such a course having been indicated as the right course by their Lordships of the Privy Council in A.I.R 1937 P.C 260.2 This order did not of course touch the question whether the obstructing party was in point of fact affected by the rule of lis pendens, but governed the procedure to be adopted in endeavouring to execute the decree and made it clear that the proceedings would on the allegation of the decree-holders be proceedings under Section 47 (vide sub-section (3) of Section 47 of the CPC). Accordingly a second execution application was filed on 11th July 1938 in which the appellants in these appeals before us were impleaded, i.e, Gendmal, Tilokchand, Easturchand and Punamchand, appellants in Appeal No. 242 of 1939, and Shankar son of Ghulia, appellant in Appeal No. 268 of 1939. Various objections were raised by them and it was contended inter alia that the execution application against these was barred by time, and that they were not affected by the doctrine of lis pendens. The learned Judge of the executing Court found that the application was within time and these appellants were so affected. It is obvious that if the transferees are affected by the rule of lis pendens enunciated in Section 52 of the Transfer of Property Act, they are bound by the decree, but if they are not so affected they are not. It is also clear that the term “representative” in Section 47 of the CPC, includes a “representative in interest” as held in I.L.R (1939) Nag. 548, 3 and that a purchaser if bound by the doctrine of lis pendens is such a representative. Before deciding whether the appellants are affected by the doctrine of lis pendens, we will deal with certain technical difficulties which have arisen in this case owing to the form of the decree, and deal with the contention that this application is time-barred. It is urged that the decree is not executable. If the decree is read very literally and with strict regard to grammar, there is no doubt that it directs that a decree be drawn up. If that is so, it is our duty to draw up a decree, and no question of limitation can arise merely because the Court from day to day has continued to fail in its duty hitherto. We do not however construe it so literally. We construe it as a decree declaring title and ordering partition.
3. As the property is an estate paying land revenue to Government the decree should under O. 20, R. 18(1) have directed partition to be made by the Collector. Though such a direction is omitted—a clerical omission which in our judgment could be repaired at any time — we do not consider that nothing can be done till it is repaired. A decree directing partition is prima facie capable of execution under O. 21, by the executing Court, and that Court on an application for execution of such a decree is entitled and indeed is bound to give effect to Section 54 of the CPC. We do not consider that it should dismiss the application, but consider that it should order that the partition be made by the Collector. The mere fact that the High Court should have ordered this at a previous stage will not make such order of the executing Court ultra vires. Such an order is obviously necessary, and can be made under the inherent powers of the executing Court. It has nothing to do with the relief granted by the Court in its decree. It is a matter of compliance with a procedural provision of law (Section 54 of the CPC) designed to safeguard the interests of Government to whom revenue is payable. A contrary view appears to have been taken in A.I.R 1935 Sind 1924 where it is said that the decree must be corrected within the time allowed by law, but we think that such a view is too harsh, at any rate in this case. The decree for partition is on the face of it executable, and an application for execution has been filed within three years of the decree. In the Sind case a decree had been confirmed in appeal in 1919 omitting the direction that the partition should be effected by the Collector, and successive applications had been made in execution. It was only after execution under O. 21, was time-barred that an application was made to send the decree to the Collector. On perusing this case we consider that this fact may have influenced the decision. But it is said by the appellants that the executing Court has no power to decide who are the legal representatives. It is contended that when a partition is to be made by the Collector the civil Court is functus officio, with the exception that certain points arising in a revenue partition may come before civil Courts in the form of suits.
4. Now no doubt it may be true that proceedings in partition before the Collector are not themselves execution proceedings under O. 21, R. 11, but they nevertheless constitute a mode of execution of the decree, and it has been held in many cases under S. 265 of the former Code, which corresponds with S. 51 of the present Code, that the civil Court retains seisin of the case. For example in 28 Bom. 2385 it is held that the Court sending a partition decree for execution to the Collector will control and correct any contraventions by the Collector of the decretal command of the Court. In 5 Bom. L.R 648, 6 a case cited both by Mulla and Chitale in their commentaries, it was held that the proper procedure to get such points decided was by way of application under Section 47 of the CPC. No doubt where the decree directs partition by the Collector it is true that no further judicial act is necessary and no application necessary to send the papers to the Collector as held in A.I.R 1939 Bom. 454, 7 but that does not mean that an executing Court cannot function judicially to decide under S. 47, who are bound by the decree. It can decide this when the question arises, for the purposes of the partition by the Collector. It appears to us impossible for a partition to be made, if the Collector is unaware who are the parties bound by the decree, who can legally be displaced under the decree and from what lands, when he has to divide the property. The mode, of division lies with him but the ascertainment of the representatives in interest of the judgment-debtors is clearly provided for by S. 47. An executing Court and an executing Court alone can decide that point when the matter has to be determined in order to carry out execution of the decree by the Collector, and we must distinguish between proceedings where a decree is under execution whether by the Court or the Collector, and title suits in which a matter of lis pendens is raised, such a suit having nothing to do with execution or legal representation but with the validity of a title.
5. We entirely repudiate the suggestion that alleged transferees pendente lite have a right while a decree is sought to be carried into execution, to put decree-holders to the necessity of bringing a suit to establish the question whether they are affected by the doctrine of lis pendens, thus defeating the very object for which Section 52 of the Transfer of Property Act, is enacted. This is what the argument comes to. Thus we hold that when a partition has to be made by the Collector in virtue of Section 54 of the CPC, the Court which passed the decree can decide on application made under S. 41 who are the transferees affected by the doctrine of lis pendens bound therefore by the decree, and subject therefore to the Collector's orders as to partition and delivery of possession. This is in effect what has been decided in the present case and this is indeed the main issue on which the parties have gone to trial, and we consider that the application of 1938 can be regarded as an application to get this point decided. An application to get such a point decided is, we think, not governed by Article 182, but can be made at any time before the right to obtain partition by the Collector has lapsed. It is an interlocutory matter to be decided before such proceedings start, or while they are pending, but it falls to be decided by the executing Court under Section 47 of the CPC, and not by the Collector.
6. Regarding, however, the proceedings to obtain execution by partition as governed in this case by Article 182, the first question which arises is whether the application of 1938 for execution is wholly out of time, the second whether it is out of time as regards the appellants in particular. On the latter point we have indicated our views on the application so far as it necessarily deals with the question of appellant's liability. As to the first point a belated argument is advanced in reply by Mr. Bobde (whose appeal raised no ground of limitation) that the application of 1936 was not “according to law” in that it asked for the wrong relief, namely, possession. The judgment-debtors, however, raised no such objection, to the execution which only proved infructuous because some of the appellants obstructed, not on the ground that the application was not according to law but because they claimed title. In these circumstances even if it is not far too late to urge such a point and even if, as we think, the representatives of the judgment-debtor would not be bound by the principles of res judicata, on this point, we feel that no over-critical or meticulous view should be taken of the propriety or legality of the first application. The application progressed without any opposition on such a ground, and in view of the attitude of the judgment-debtor at the time and the difficulty in construing the decree, we consider it would be quite wrong to say that all rights under the decree were lost simply because this application of 1936 was deficient in asking for the right relief. We consider that though the wrong relief was asked for, it was a step-in-aid within the meaning of Article 182, and indeed it has not been seriously contested that a partition must be made by the Collector. The attack has rather been concentrated on the power of the executing Court to order that the partition is to be made against the appellants.
7. As to the appellants in particular, we observe that Expln. 2 to Article 182, has no application. There is no decree passed against them, and the term “representatives” in the Explanation cannot in our judgment apply to transferees pendente lite. We consider that the true position is that if the application against the judgment-debtors is in time, it must be in time against transferees pendente lite. It would be absurd if transferees pendente lite whose transfers failed against the decree-holder could be heard to say that an execution which was otherwise in time was barred against themselves on the ground that they had not been proceeded against in the first execution. If such were the law they could avail themselves of the fact that a previous execution was struck off by agreement between decree-holder and judgment-debtor and in the next execution obstruct for the first time and obstruct with complete success. Transferees pendente lite are entitled to no sympathy, and any doubt which might exist should be resolved against them. Those who have no title against the decree-holder may or may not obstruct. The decree-holder cannot guess what attitude they will adopt, an attitude consonant with law or in defiance of law. He can disregard their transfers and is under no obligation to implead them. The limitation regarding them if he decides to implead them must be the same as in regard to the judgment-debtors. If execution against the judgment-debtors is not barred, an application to decide whether the transferees are bound by the decree and enforce it against them will lie.
8. This brings us to the merits whether the appellants are or are not affected by the doctrine of lis pendens. The family of Tilokchand represented by the appellants in Miscellaneous Appeal No. 242 of 1939 purchased certain sir fields in mouza Yenora when the suit was pending which are covered by the decree. They also purchased a malguzari share by a Court sale in execution of a preliminary decree for sale obtained by them against Balaji who had mortgaged this latter property to them. This malguzari share is also the subject of the decree. The appellant Shankar purchased a sir field. The argument of the appellants may be summarised as follows: (1) The property at Yenora was not specifically in issue in the suit on which the decree has been passed. (2) In order to decide whether the purchasers are affected by the doctrine of lis pendens, it is necessary to determine whether, when the appellants purchased, they purchased from an ostensible owner and are entitled to the benefit of Section 41 of the Transfer of Property Act, i.e, whether respondents are estopped from relying on Section 62 of the Transfer of Property Act. (3) The case should be remanded to decide whether the suit of the decree-holders against Balaji was collusive. (4) The title to the sir fields purchased relates back to a mortgage executed in favour of one Allibhai in 1917, as the appellants in Miscellaneous Appeal No. 242 of 1989 are subrogated to the rights of Allibhai. (5) The title to the malguzari village of Yenora relates back to the date of the mortgage which the appellants in Appeal No. 242 of 1939 were enforcing. (6) The title of Shankar relates back to an agreement to sell made according to Shankar prior to the suit of 1928 and the finding of the lower Court that the agreement to sell has not been proved to have been made before the suit was instituted should be set aside.
9. We will first deal with the contention that it is necessary to enter into any question under Section 41 of the Transfer of Property Act, in order to decide whether a purchaser pendente lite is affected by the doctrine of lis pendens. The matter has been dealt with by Sulaiman, J. in 25 All. 1398 where he points out that an estoppel arising under Section 41 of the Transfer of Property Act, cannot be such as to override the imperative provisions of S. 52 of the Act. Cases of express consent to a purchase followed by fraud on the part of the plaintiff who has filed a suit stand in a very different position from estoppel arising under S. 41, and although S. 62 does not rest upon an equitable principle of implied or constructive notice of the suit, there can be no doubt that the filing of the suit strongly militates against any possibility of implied consent by the plaintiff to the purchase while that suit is pending. The Legislature has not chosen to make any exception to S. 52 founded on equitable doctrines. Indeed, a question arising under Section 41 of the Transfer of Property Act, is rather a question affecting the worth of a title which is not acquired from the true owner, whereas a question arising under S. 52 affects the inability of the vendor to give a title whether good or bad, in such a way as to affect the rights of a party to the suit under any decree which may be made therein. Much reliance is placed by Mr. Bobde on 13 Pat. 7359 where the following remark occurs at p. 749:
“A purchaser from the judgment-debtor pendente lite cannot be regarded as a representative of the judgment-debtor for the purpose of execution proceedings if it cannot be said that for the purpose of those proceeding he is affected by the decree and stands in the shoes of judgment-debtor.”
10. This was a case where during the pendency of a civil suit for money one G had attached a certain house. During the pendency of the suit he agreed that D should purchase the house and D purchased the house and deposited money to be paid to G when the attachment was withdrawn. G executed a document declaring that he had no claim for attachment in execution of the property, and that it was purchased without any kind of encumbrance or attachment. Subsequently he put the property to sale and purchased in execution. An argument was advanced that the purchaser's suit against G did not lie for the reason that the purchaser was a purchaser pendente lite and the matter must be decided in execution, and it was in this connexion that the Court remarked that a purchaser from the judgment-debtor pendente lite cannot be regarded as a representative of the judgment-debtor for the purpose of execution proceedings if it cannot be said that for the purposes of those proceedings he is affected by the decree and stands in the shoes of the judgment-debtor. Mr. Bobde would interpret the words “unless he is affected by the decree” in such a way as to nullify the whole doctrine of lis pendens, and seems to suggest that before the doctrine of lis pendens can apply it must be decided that the purchaser is bound by the decree on some other ground than the fact of his purchase, whereas all that is meant is that if the circumstances are such that he is not affected by the doctrine of lis pendens he will not be bound by the decree. Although the case does not appear to have been a case of purchase pendente lite but is of purchase pending an attachment, the class of case where owing to express consent a purchase is made pendente lite is in fact dealt with by Sulaiman, J. in the judgment cited. Such a case raises an estoppel and prevents the opponent from pleading lis pendens. We have no doubt that the appellants cannot escape the doctrine enunciated in Section 52 of the Transfer of Property Act, on such grounds as that Balaji while he was being sued was still a recorded owner of the property and his name had been allowed to remain as the recorded owner for years. We therefore overrule this contention. [Their Lordships discussed the question of collusion and proceeded.]
11. Turning now to the sir fields purchased by the appellants in Appeal No. 242 of 1939 there is no force in the contention that they are subrogated to an earlier title. One Allibhai had a mortgage dated 2nd January 1917 executed by Balaji and a preliminary decree for foreclosure was passed on 19th July 1929. With the sanction of the Collector to transfer cultivating rights in sir Balaji sold certain sir fields in Yenora, which was not a property mortgaged to Allibhai, in order to raise funds to pay off the mortgage money due on the preliminary decree for foreclosure. The mortgage of Allibhai was certainly not redeemed in full for the reason that Allibhai obtained a final decree for foreclosure. There was no agreement for subrogation in the instrument of sale and it is obvious that Section 92 of the Transfer of Property Act, had no application. A far more difficult question arises in respect of the purchase by the appellants of village Yenora which had been mortgaged to the appellants by Balaji on 14th April 1920. The appellants instituted a suit on their mortgage of 12th July 1927 prior to the suit brought by the respondents. They obtained a preliminary decree on 19th December 1927 prior to that suit, but the final decree for sale was obtained on 8th March 1980 after the suit of the respondents was filed, and the appellants purchased in execution on 29th November 1930.
12. It is conceded that the doctrine of lis pendens applies generally to auction sales, but it is contended that in numbers of cases the titles acquired in sales effected when enforcing mortgages are held to date back to the date of the mortgage. The learned advocate for the respondents points out that all such reported cases are cases of competition between mortgagees and seeks to distinguish cases where two competitors derive title under a mortgage from the same owner as to whose ownership there is no dispute, and cases where the lis displaces the title of the mortgagor. He relies on the reasoning reproduced in the headnote of 30 N.L.R 28410 for such a distinction. It is suggested by the learned advocate for the appellants that the title of the successful litigant cannot relate back to any earlier date for the purposes of such competition than the date when he obtains the decree, whilst that of the purchaser in execution of the mortgage goes back to the date of the mortgage. It is on the other hand said by the respondents, and said rightly, that the title of the successful litigant is not in any way derived from his opponent, but is entirely independent of his opponent in the lis. The learned counsel for the appellants relies on a decision in 2 Luck. 26911 to show that the decisions are not confined to decisions between competing mortgagees. The learned advocate for the respondents relies particularly on the Privy Council case, 25 Cal. 179, 12 in order to establish that decisions in mortgage suits refusing to apply the rule of lis pendens are all wrong.
13. Before considering other cases, it is convenient to take the case reported in 2 Luck. 269 and the Privy Council case in 25 Cal. 179. In the Lucknow case the position was that one of the competitors was, as here, a litigant successful in a partition suit. The other was a purchaser pendente lite. After the suit was filed the vendor had mortgaged the house with possession and with, a condition of sale to the person who afterwards purchased in execution. But when the mortgage was executed the mortgagee (who subsequently purchased) paid off a possessory mortgage executed prior to the suit and so when he entered into possession of the mortgaged property (apparently pendente lite) he replaced the mortgagee who had been in possession before. Although the possessory mortgage executed after the suit for partition was filed was a transfer pendente lite, the transferee was held to be protected on the ground that he obtained possession from the prior mortgagee and that he was subrogated to the prior possessory mortgage. The facts of this case are somewhat peculiar, in that they contained the element that the purchaser pendente lite had possession from a prior mortgagee, not a party to the suit, and was subrogated to his mortgage, and the Court said that he must be treated in relation to his possession not as a purchaser from the party to the suit but as a purchaser from the prior mortgagee in possession who could not be affected by a suit subsequently brought. We do not think that this case is of much assistance in the present case.
14. In the Privy Council case, 25 Cal. 179 the facts were that by reason of a creditor's preexisting charge certain property was sold in execution in 1882, a mortgagor thereof and a mortgagee having been successfully impleaded in the suit. When the mortgagee obtained a decree for sale on his mortgage the purchaser of 1882 by name Masih objected in execution, and his objection being dismissed brought a declaratory suit on 28th July 1884, against the representatives of the mortgagee and against the mortgagor. While the suit was pending one Moti purchased in execution of the mortgage decree. A contention set up by Moti that he was not bound by the decree obtained by Masih was ridiculed by their Lordships of the Privy Council who said that if that were the law it was difficult to see in what cases a pending suit would be any protection. It will be seen in this case that the mortgagee who put the property to sale was a party to Masih's suit. Obviously such dealing with the property by the mortgagee pendente lite could not affect Masih, and no question could arise of enquiring whether Moti's title could relate back. Hence we are not prepared to accede to the contention that subsequent cases which decide priority by the dates of the auction sales of competing mortgagees or by the dates of their mortgages, and refuse to apply the doctrine of lis pendens to some mortgage suits, must all be wrong.
15. It was held by Pollock A.J.C in 30 N.L.R 284 that a decree for sale or a decree for foreclosure obtained on a mortgage could not be said to transfer or otherwise deal with the property covered by the mortgage deed. He followed 56 Mad. 11513 at pp. 132 and 133 where it is laid down that the rule of lis pendens does not apply to previously existing transfers including mortgages or legal proceedings to enforce such transfers by those entitled. But, in view of the Privy Council decision cited, we doubt if one can say that a mortgagee does not deal with the property when he puts it to sale, and indeed in 56 Mad. 84614 it was decided that in cases “which were not affected by the doctrine of lis pendens” the date of purchase of the mortgagee's right to possession gave priority of title to possession. In 32 Cal. 89115 the facts were that executed one mortgage in favour of A in 1885, and executed another mortgage in 1888 in favour of B. A was the first to go to Court and obtained a decree and his assignee did not purchase in execution of the decree for sale until 1898. The decree for sale was obtained in 1894. B brought a suit before the proceedings in the first suit were completed, and purchased and obtained possession by 28th March 1896. Mitra, J. held that the doctrine of lis pendens did not apply as the title of the defendant (who brought the second suit) related back to a period anterior to the plaintiff's suit, namely to 1888, but that although the doctrine of lis pendens did not apply the plaintiff was entitled to succeed on the ground that his own title related back still further. Brett, J. had differed from Rampini, J. in holding that the doctrine of lis pendens applied. In A.I.R 1934 Mad. 58516 it was held that, the doctrine of lis pendens did not apply to competing mortgagees but that priority rested on the date of purchase. It was said in this case that the principle of lis pendens is based on the maxim ut lite pendente nihil innovatur which means “during a litigation nothing new should be introduced.” It is also said:
“The reason for the doctrine is that but for it, ‘interminable litigation might be the consequence.’ The alienations aimed against by the rule are those made during the pendency of the suit and not those which have been effected previously. If a certain right remains unaffected, the legal remedy to enforce that right must also continue. No suit therefore can operate as a lis pendens so as to affect the antecedent transfers which had come into existence prior to it; the transfers being unaffected, it follows that the legal proceedings brought to enforce those transfers are likewise immune from the operation of the rule.”
16. In A.I.R 1931 ALL. 46617 the rule of lis pendens was applied to a subsequent mortgagee who purchased in execution during the pendency of a suit by a prior mortgagee. The view of Brett, J. in 32 Cal. 891 was also followed in 53 ALL. 1023 where it was held that a puisne mortgagee who purchased during the pendency of a suit on the prior mortgage would be affected by the doctrine. Mukerji, J. however held that where a transfer takes place not in execution of a simple money decree or by private treaty but at the instance of a subsequent mortgagee who is no party to a pending litigation of a prior mortgages the rule of lis pendens has no application. We have underlined (here italicized) the words which we consider very material.
17. Mr. Kedar for the respondents argues, as we have said, that the title of the successful plaintiff in the title suit may relate back to a period long before a trespasser obtains possession and executes a mortgage. But the answer to this contention is, we think, that we are concerned here to see whether the rule of lis pendens applies and not to see which is the earlier of the competing titles. For the purpose of the argument as to lis pendens, if the matter is to be decided by relating back the title of the appellants it is sufficient that it relates back to a period prior to the suit of the respondents. He relies also on Halsbury's Laws of England, vol. 29, para. 438 where it is said that the pending action must affect the title to the land. Here it obviously does. But in mortgage suits an interest in land is also at stake. On the whole we consider that there is no reason to take a different view on the question of lis pendens, merely on the ground that in the case of competing mortgagees there is no dispute as to the title of the mortgagors. We approve the decisions that mortgagees pursuing their remedies on mortgages previously executed are not affected by any doctrine of lis pendens arising from suits subsequently instituted, but instituted prior to the sale, and consider that the sale in execution of a mortgage decree is to be regarded as a legal action by a mortgagee in enforcement of his pre-existing rights (which are unaffected by res judicata) rather than as an involuntary sale by the mortgagor, and that, the mortgagee who purchases will only be affect by the doctrine if he himself is impleaded in the lis, as happened in the Privy Council case which we have discussed.
18. We would remark that the rule of lis pendens is designed to avoid a multiplicity of suits and also to avoid the necessity of impleading successively each subsequent transferee. If this had to be done a suit might never end. The rule no doubt works hardship to a creditor who seeks to put to sale and purchases land in execution of a money decree which he considers to be his debtor's, and then finds that before his purchase a successful title suit for the land against his debtor has been filed. It may also work hardship to many an innocent auction-purchaser. But not only would it work hardship in the case of a mortgagee who had obtained a mortgage and filed a suit on the mortgage before the title suit was instituted, but also in this class of case even if the mortgagee did not proceed to sell and purchase the property, litigation between the mortgagee and the successful plaintiff in the title suit would be almost inevitable. Were the plaintiff in the mortgage suit to implead the plaintiff in the title suit (assuming that he were aware of the title suit) he would at once be met with a plea of paramount title. But the plaintiffs in the title suit affected by notice of the mortgage can very easily implead the mortgagee. In fact when the matter is looked at broadly, it would appear that unless the plaintiff in a mortgage suit manages to get himself impleaded in the title suit, litigation at some further stage is inevitable, and it is doubtful whether the application of the rule of lis pendens would serve any useful object, i.e, if the mortgagee suspended his proceedings in execution the litigation would still arise. Again the sale of the land though carried into execution by the Court originates from a contractual obligation coupled with an interest in land, and may thus be distinguished from a case of a mere contract to sell which arises in the case of the appellant Shankar.
19. As regards appeal of Shankar, it is said that as the appellant had entered into a contract of sale prior to the institution of the suit of the plaintiffs, the doctrine of lis pendens will not apply. As to the date of the agreement of sale made by Balaji to this appellant the finding of fact of the learned Judge of the executing Court is against the appellant, and on a perusal of the evidence we do not consider that it is established that the contract of sale took place prior to 4th April 1928. Balaji had indeed applied for permission to sell his sir fields prior to 24th January 1928, as it shown by Ex. 6, N.A 2, a copy of the report of the Sub-Divisional Officer, Hinganghat, and the name of Ghulia, a purchaser, is mentioned as the non-applicant. But the field which was eventually purchased by Ghulia is mentioned as being one which Balaji intended to sell to Nathu Sitaram and Govind Mahadeo Kunbi. The sale deed is dated 27th April 1928, and it has mentioned that Rs. 500 cash had already been taken as earnest money, but the date on which the sum of Rs. 500 was received is not mentioned, and in the pleadings it was stated that the contract of sale took place in February, but evidence was offered that it took place in January. The learned Judge of the executing Court considers the evidence to be unreliable and although it is quite possible, and even likely, that the contract did take place prior to 4th April 1928, we do not consider that this fact would help the appellant. It is to be observed that although the contract for sale can be enforced against a subsequent transferee with notice, and perhaps against an attachment, vide, 1941-2 M.L.J 722, 18 and although for certain purposes the title relates back, vide, 49 Cal. 495, 19 a contract of sale creates no interest in the land. We do not consider that doctrines of equity, not provided for in the Transfer of Property Act, should be imported into the construction of Section 62 of the Transfer of Property Act, in a case of this nature. We hold that Shankar is bound by the decree and that it can be executed against him. The result is that the Appeal No. 242 of 1939, succeeds in respect of the village share (16 annas) of Yenora and other mortgaged property but fails as regards cultivating rights in the sir fields. The appeal of Shankar (Appeal No. 268 of 1939) is dismissed with costs. The partition will now proceed before the Collector omitting the malguzari share of Yenora. The value of the malguzari share should, however, be calculated in the partition, and unless it amounts to less than a quarter of the property covered by the decree it should be regarded as Balaji's share in the possession of the appellants in Appeal No. 242 of 1989, with the result that the rest of the property will be available for the decree-holders. If it amounts to less than a quarter share then the field purchased by Shankar should be treated as allocated to the share of Balaji. Further directions to make an equitable partition on these lines to ensure that the decree-holders obtain ¾th the property mentioned in the decree, if possible, and so far as may be, even though the decree-holders cannot dispossess the appellants from the malguzari share, may be sought if necessary by application under Section 47 of the CPC, to the executing Court. It is of course open to the decree-holders to sue the appellants for three quarters of the malguzari share. We consider that in Appeal No. 242 of 1939, the parties should bear their own costs, and that the appellants should pay the costs of Allibhai whom they had unnecessarily impleaded in this appeal and who was discharged from the appeal. Shankar must pay the costs of his appeal to the respondents.
20. Order accordingly.