Case: Kedar Nath Lal &amp; Another Vs. Ganesh Ram &amp; Others

he overlooked that a mortgaged 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 his earlier order thus :"S. 1.6 read along with Section 1.5. By mistake of the 2nd Assistant simple award was issued instead of mortgage award. Issue mortgage award and ask the C. B. to return the simple award which will be cancelled here.S. Syed Ozair D. F. A.Addl. A. R. 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 Transfer of Property Act the whole of this period denoted pendency of the proceeding for purposes of application of the doctrine of lis pendens.14. All the leases made by Devendranth 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.15. The first argument is that there could be no lis pendens till August 16, when the money award was issued because a money suit or 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 its order, 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.16. The second ground of attack is that before the proceeding 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 v. Karrab-ul-Din, (1897) 24 Ind App 170 (PC).17. 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 v. Krishna Kumar Nag, 1967-2 SCR 18 = (AIR 1967 SC 1440 ) 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 must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Monohar, (1887) 15 Ind App 97 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 the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 and (1897) 24 Ind App 170 (PC))."This ground also has no validity.18. 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. To 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 v. Sukur Mohammed, 75 Ind App 165 = (AIR 1948 PC 147 ). There is, however, one condition that 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 Maharajs case, 75 Ind App 165 = (AIR 1948 PC 147 ), referred to by us, it was said that if the proceedings were bona fide, the applicability of Section 52 was not avoided.19. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. 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.C. B. 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 withour 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 not 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 realise 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.12. 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 12 1/2 per cent 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. 2440/3.When the Registrar made his order he overlooked that a mortgaged award had to be passed. On August 16, 1934 he ordered that an award jointly with sureties bethis 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 Transfer of Property Act the whole of this period denoted pendency of the proceeding for purposes of application of the doctrine of lis pendens.14. All the leases made by Devendranth 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 thema 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 its order, 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.16.The second ground of attack is that before the proceeding commenced before the Registrar these fields had been attached and therefore, the doctrine of lis pendens again cannotpoint was considered in Samarendra Nath Sinha v. Krishna Kumar Nag, 1967-2 SCR 18   = (AIR 1967 SC 1440  ) by one of us (Shelatground also has nothis 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 oris, however, one condition that 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.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.