Appeals Nos
1091 1103 of 1964
Appeals from the judgment and decree dated April 17 1957 of the Patna High Court In Second Appeals Nos
1447 of 1950 etc
CB Agarwala and D Goburdhun for the appellant in all the appeals
UP Singh and KC Dua for respondents Nos 3 and 4 in CA No 1091 of 1964 respondent No 3 in CA No 1092 of 1964 respondent No 4 in CA No 1093 of 1964 respondent No 7 in CA No 1094 of 1964 respondent No 3 in CA No 1096 of 1964 respondents Nos 4 and 5 in CA No 1095 of 1964 and respondent No 4 in CAs
1099 1100 and 1101 of 1964
The Judgment of the Court was delivered by Hidayatullah CJ
These are 13 appeals by certificate against the common judgment in second appeal April 17 1957 of the High Court of Patna
The appellants are the original plaintiffs
The appellants had filed 12 title suits for ejectment in the court of the Second Munsif at Buxar
Eleven suits were dismissed
It was held that the plaintiffs had no title to suit lands
One suit was compromised and decreed in terms of the compromise
Two other suits one by Kedar Nath one of the plaintiffs in the 12 title suits and the other by one Udholal were filed for rent for 1335 1337 Fasli in respect of some lands comprised in Survey No 3385 of Mouza Buxar against the tenant Ram Chhabi Lal
The two rent suits were heard together
Kedar Nath was held to be the landlord and not Udholal
The suit of the former was decreed and that of the latter dismissed
On appeals filed by Udholal the decision was reversed
Appeals by Kedar Nath to the High Court were dismissed on the ground that in the title suits from which eleven appeals were filed it was held by the High Court affirming the decision of the courts below that Kedar Nath had no title
Since the success of the last two appeals depended on whether Kedar Nath had title or not it is not necessary to refer to them at this stage
We shall deal with the other eleven appeals first
in these appeals plaintiffs and defendants 1 to 3 are common
Plaintiffs are purchasers from the mortgagees of the suit 206 lands who had purchased the suit lands in an auction sale in execution of the mortgage decree
Defendants 1 to 3 were the former owners of these suit lands and the other defendants were either purchasers at auction sales in execution of money decrees against the owners or transferees from the auction purchasers
The suits concern plots formed out of two Survey Nos 3384 and 3385
It is thus that the other two suits get connected with the title suits because in those suits the rent of certain plots from Survey No 3385 was involved
The history of the plots is as follows  One Laxmi Narain was the previous owner of these 2 Survey Nos
On his death his daughter s sons Ram Narain Ram Sheonarain Ram and Gopal Ram inherited these Survey Nos
alongwith other properties
The first two sons were defendants 1 to 2 in the suits and defendant 3 is the son of Sheonarain Ram
In 1930 the other two brothers sued Gopal Ram for a partition
Preliminary decree was passed on April 15 1931 and the final decree on September 10 1932
Half share in the property went to Gopal Ram and the other half jointly to the other two brothers
The suit Survey Nos
came to the share of Ram Narain Ram and Sheonarain Ram
On April 27 1931 Ram Narain Ram executed a mortgage of a half share in 27 plots made in the two Survey Nos
and some other property with Buxar Trading Co operative Society
On April 20 1933 the Society released Ram Narain Ram S share in the 27 plots from the mortgage by a registered release deed
On September 20 1932 Sheonarain Ram filed a suit for partition against Ram Narain Ram
The preliminary decree was passed in May 1933 that is to say after the release by the Society
The two brothers divided the two Survey Nos
half and half between them
No final decree in this partition suit seems to have been passed
Devendra Nath one of the defendants obtained settlement of 3 k 13 d of land out of Survey No 3384 from Sheonarain Ram on June 10 1933 and in execution of a money decree against Ram Narain Ram and Sheonarain Ram purchased on August 13 1934 the remaining portion of Survey No 3384 and Survey No 3385
He obtained possession on February 27 1935
He had obtained attachment of the two plots before judgment on April 23 1934
Devendra Nath disposed of 3 k 13 d by settling them on his wife and she was one of the defendants in the suits
Devendra Nath s title depends on whether the release by the Society was valid and binding on the Society or not
If the release was valid and binding on the Society the Society could not obtain a decree in respect of these two Survey Nos
and bring them to sale
207 This is one of the points for consideration in these appeals
The High Court and the court below have decided unanimously that the release was binding on the Society and Devendra Nath obtained no title
On April 26 1934 that is to say before Devendra Nath s purchase but after attachment by him the Society applied to he
Registrar Co operative Societies for a mortgage award
In that application the surety of Ram Narain Ram was also joined
On August 16 1934 a money award was given against Ram Narain Ram and his surety
On September 20 1934 the money award was cancelled and a preliminary mortgage award was passed
Admittedly the mortgage award had the force of a mortgage decree
The final mortgage award was made on May 28 1935
The award ordered sale of all mortgage properties including the half share of Ram Narain Ram in survey Nos 3384 and 3385
No mention was made of the earlier release of the Survey Nos
by the Society by a registered deed
In execution of the decree the Society purchased the two Survey Nos
on February 7 1936 and obtained possession on July 20 1937
One Dwarikanath had a money decree against the Society and he attached the two disputed Survey Nos and brought them to sale
The Buxar Central Co operative Bank purchased the two Survey Nos
in auction sale on February 8 1940 obtaining possession on July 5 1941
On March 28 1943 the Society and the Bank went into liquidation
The right title and interest of the Society and the Bank was sold by the common Liquidator to Kedar Nath including the 27 plots made in the two Survey Nos
Kedar Nath s purchase was on March 20 1943 but he took the sale benami in the name of Dhanesar Pandey who was plaint
ill No 2 in the title suits while Kedarnath was plaintiff No 1
The title of the plaintiffs Kedar Nath and Dhanesar Pandey is based on this purchase
After the release of the two Survey Nos
by the Society Ram Narain Ram and Sheonarain Ram and after his purchase Devendra Nath made settlement of the plots to various persons
They are the remaining defendants in the suits and respondents in the various appeals before us
The High Court has given a chart of these persons and the dates of pattas but as nothing turns upon these details it is not necessary to mention them here
The plaintiffs Kedar Nath and Dhanesar Pandey in these title suits asked for declaration of title and possession
Their case was that the release was void and inoperative and not binding on the Society
Therefore the mortgage award and the auction sale was binding on Ram Narain Ram and all those who derive title 208 from him
Their next contention is that
 in any event the transfers to the defendants were effected during the pendency of the mortgage award proceedings and were affected by the doctrine of lis pendens
These two grounds were not accepted by the High Court and the courts below and it is these two grounds which were urged before us in these appeals
The other side seeks to avoid the effect of lis pendens by pleading that the mortgage award was claimed mala fide against the suit plots after their release and in any event there was attachment of these plots before the petition for the mortgage award was made
Before we deal with these two points it may be mentioned at once that neither ground of appeal applies to the transfers by Sheonarain who was not a mortgagor and who was not affected by the release deed made by the Society
Mr CB Aggarwal frankly conceded that the transfer by him could not be assailed and must stand
He therefore did not press Civil Appeals Nos
1091 1092 1093 and 1094 of 1964
These appeals are accordingly dismissed with costs
We may first consider whether the release was binding on the Society or not
When Ram Narain Ram mortgaged the property to raise a loan from the Society of which he was a member half share in the plots belonged to him because these plots had fallen in the preliminary decree to
the share of his brother Sheonarain Ram and himself
That preliminary decree was passed on April 15 193 1
The Society had fixed a ceiling on the amount which could be borrowed at Rs 3000 
The mortgage deed recited that the amount borrowed was Rs 3000 with interest at Actually Rs 1890 were given as a loan
The release deed releasing the suit plots was executed in pursuance of a resolution of the Society Res
No 4 dated April 4 1933
The release stated thus   relinquished and released the properties specified below from the debt due to the said Ram Narain Ram to the said society entered in the said mortgage bond in favour of Ram Narain Ram 
The said property shall not be made liable for any debt of the said society nor shall any incumbrance be recovered from the said property
The said property shall come in possession of Ram Narain Ram
The said Ram Narain Ram shall have right to sell the property to keep the same in whatever ways he likes
The said society neither has nor shall have any objection thereto
 209 Why the release was granted by the Society was stated in the following words  
A petition was filed on behalf of the said Ram Narain Ram in the meeting of the members in the presence of all the members of the society for releasing some land from the said mortgage in order to repay the debt
of Rs 500 forming part of the debt due by the said Ram Narain Ram to the said co operative society which was put up before all the members and accepted by them  
It appears that Ram Narain Ram did not pay the amount of Rs 500 to the Society and the Society considered itself free to include these two plots notwithstanding the release in their application for an award decree
In our opinion the release was binding on the Society
The argument
in opposition to the binding nature of the release is that it was conditional on payment of Rs 500 
This is no true
No doubt the motive for the release was the payment of Rs 500 to the Society promised by Ram Narain Ram but the payment was not made a condition of the release
There was no attempt to release this amount from Ram Narain Ram
Therefore the release being absolute and unconditional and by a registered deed must be treated as binding
It is open to the promisee to waive the performance of any part of the contract or to release any property from the operation of a mortgage or charge
If he wishes his rights to continue in the
event of some condition simultaneously imposed on the promisor he must see that the release is made dependent on the performance by the promisor of his part of the agreement
Here the Society merely released the two plots without making the payment a condition precedent and the release operated
That however is not the end of the matter
The Society filed on April 5 1934 a petition for a mortgage award before the Assistant Registrar Co operative Societies
The petition is headed Petition for mortgage decree 
The petition mentioned that the mortgage was made on April 27 1931 and that the amount secured was Rs 3000 with interest at 1212 per annum
The petition then described the property mortgaged and it included plots Nos
3385 and 3384
The amount due on December 31 1933 was said to be Rs 24403
The relief asked for was We the punches therefore pray that a decree may be passed by your honour against the said member and he may be directed under the decree to pay the debt principal and interest amounting to Rs 24403 within 3 months that in case of non payment this order may be passed that the entire amount may be realized by 210 auction sale of the mortgaged property and that if the mortgaged property would not be sufficient for the satisfaction of the entire amount of the decree the punches of the committee be allowed to pray for passing a personal decree against the said member
 When the Registrar made his order he overlooked that a mortgage award had to be passed
On August 16 1934 he ordered that an award jointly with sureties be issued
However on September 2 1934 he corrected Iris earlier order thus S1 6
Read along with S1
By mistake of the 2nd Asst
simple award was issued instead of Mortgage award
Issue mortgage award and ask the CB to return the simple award which will be cancelled here
Syed Ozair
DFA Addl
AR 2 9 34
 After this mortgage award which had the force of a preliminary decree the Society on December 16 1934 resolved that a final mortgage decree be obtained from the Assistant Registrar and a final decree was obtained and the property brought to sale on February 7 1936 and purchased by the Society itself with the permission of the court executing the decree
Possession was obtained on July 20 1937
Therefore litigation in respect of this mortgage remained pending from April 5 1934 to July 20 1937
Under Explanation to section 52 of the the whole of this period denoted pendency of the proceeding for purposes of application of the doctrine of lis pendens
All the leases made by Devendranath were after the proceedings commenced
Devendranath purchased the right title and interest of Ram Narain Ram on August 13 1934
His acquisition was prima facie hit by the doctrine of lis pendens
Three arguments were advanced before us to meet this situation and we shall now deal with them seriatim
The first argument is that there could be no lis pendens till August 16 when the money award was issued because a money suit for proceeding cannot lead to the application of the doctrine of lis pendens
As a proposition of law the argument is sound but it is wrongly grounded on fact
The proceeding was to get a mortgage award the equivalent of a mortgage decree
The Court made a mistake and treated it as a proceeding for a money decree
When the court corrected itsorder the mortgage award related back to the petition as made and the whole of the proceeding must be treated as covered by the doctrine
We cannot therefore accede to the suggestion that the doctrine did not apply at any rate on this suggested ground
211 The second ground of attack is that before the proceedings commenced before the Registrar these fields had been attached and therefore the doctrine of lis pendens again cannot apply
We are unable to accept this argument either
If the property was acquired pendente lite the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition
This result is not avoided by reason of the earlier attachment
Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property
On the other hand section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation
Therefore the attachment was ineffective against the doctrine
Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal vs Karrab ul Din and others1
Lastly it was contended that the sale was by court auction and the doctrine of lis pendens would not apply to such a sale
This point was considered in Samarendra Nath Sinha and Anr
vs Krishna Kumar Nag2 by one of us Shelat J and it was observed as follows   
The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right title and interest from or through him
This principle is well illustrated in Radhamadhub Holdar vs Monohar3 where the facts were almost similar to those in the instant case
It is true that section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that he principle of lis pendens applies to such alienations
See Nilkant vs Suresh Chandra4 and Moti Lal vs Karrab ul Din1   This ground also has no validity
Lastly it was argued that if the fields were released from the operation of the mortgage they could not be made the subject of a mortgage decree and whatever was done in the mortgage proceedings was not of any consequence
this there are two answers
Firstly the respondent before the Registrar Ram Narain Ram made no objection to the inclusion of the plots in the petition for a mortgage award
Secondly the doctrine of lis pendens applies irrespective of the strength or weakness of the case on one side or other
See Gouri Dutt Maharaj vs Sukur Mohammed and Ors5
There is however one condition that 1 24 IA 170
3 15 IA 97
2  4 12 IA 171
5 75 i
A x65
212 the proceedings must be bona fide
Here no doubt the Society knew that the plots had been released from the mortgage but it was also clear that the release was to enable Ram Narain Ram to dispose of some of the plots and pay Rs 500 to the Society
This amount was never paid and the Society must have bona fide felt that the plots still remained encumbered
In fact the attitude of Ram Narain Ram in not claiming that these plots be removed from the mortgage award shows that he too felt that this was the true position
In Gouri Dutt Maharaj s1 case referred to by us it was said that if the proceedings were bona fide the applicability of section 52 was not avoided
For the above reasons we are clear that the purchase by Kedarnath was protected by the doctrine of lis pendens the prior transfer to the defendants notwithstanding
In this view of the matter the judgment of the High Court cannot be sustained
The appeals will therefore be allowed
The judgment and decree of the High Court will be set aside and the suits of the appellant will be decreed with costs throughout
In this Court the costs will be one set
RKPS Appeals allowed
1 75 XA 165 L 1 Sup70 6 7 70 GIPF


Summary:
One R executed a mortgage of his share in two survey Nos
to a Cooperative Society
On his application and in order to enable him to repay a sum of Rs 500  the Society released the property in 1933 but R never paid the amount to the Society
The Society filed an application for a mortgage award on April 5 1934 and the Assistant Registrar made an award in the nature of a preliminary decree on December 16 1934
Thereafter a final mortgage decree was passed by the Assistant Registrar and the two survey nos
were brought to sale and purchased by the
Society and possession was obtained on July 20 1937
Meanwhile one D obtained attachment before judgment of the two survey nos as the property of R in a suit for money against R and in execution of the money decree purchased the two survey nos
on August 13 1934
In 1943 the Society went into liquidation and the liquidator sold the properties of the Society and the appellant bought the two
survey nos
He filed a suit for a declaration of his title and possession of the properties in the two survey nos
from various persons who were in possession of the properties under R and D
The High Court dismissed the suit
In appeal to this Court HELD 1 The motive of the release in 1933 of the properties by the Society in favour of R was the payment of Rs 500 by R to the Society but it was not a condition Of the release
Therefore the release was binding on the Society
209 D E 2 But R did not object to the inclusion of the items in the mortgage award
Therefore the Society must have bona fide felt that the properties remained encumbered
211 G 3 The proceedings in respect of the mortgage were pending from April 5 1934 to July 20 1937
The proceedings were for obtaining a mortgage award equivalent to a mortgage decree and not for a money decree
The fact that they were attached before judgment in D s suit does not affect the application of the doctrine of lis pendens
Attachment is only effective in preventing alienation and does not create title to property
If in fact the property was
acquired pendente lite the acquirer is bound by the decree ultimately obtained
Therefore D s purchase on August 13 1934 was hit by the doctrine
of lis pendens in section 52 of the 
Since D s purchase was hit by the doctrine the properties continued to be those of the Society and hence the appellant was entitled to them
210 E G H 211 A C 205 Samarendra Nath Sinha  Anr
vs Krishna Kumar Nag   followed
Moti Lal vs Karrab ul Din  Ors
24 IA 170 and Gouri Dutt Maharaj vs Sukur Mohammed and Ors
75 IA 165 applied