Posted On by &filed under High Court, Madras High Court.

Madras High Court
Arunachalam Chettiar vs Valambal Ammal on 19 January, 1928
Equivalent citations: AIR 1928 Mad 612


1. The first question is whether the respondent is entitled to intervene under Section 47, Civil P.C. Now this is not a case of a person filing a claim petition relying on a paramount right i e., a right inconsistent with the right of the mortgagor. The respondent recognized the right of the mortgagor, in 1917 when he executed his mortgage but says that that right has since been purchased by herself in January 1925 and, therefore, the mortgagor has nothing to be sold by the mortgagee. In so contending she comes in as a representative of the mortgagor. The objection is to the execution of the mortgage decree by sale of the properties and therefore the question relates to the execution of the decree. Thus Section 47 applies and the relative rights of the parties can be determined in the proceedings.

2. Coming to the merits: there are two applications of lis pendens in this case. (1) The mortgage of 1917 was made while the decree obtained by the respondent is pending satisfaction and has not been fully worked out. Therefore, that mortgage cannot affect the rights of the respondent under her maintenance decree. (2) If there had been no second suit, i. e., the suit of the mortgagee (O.S. 116 of 24) the matter is simple. The execution proceedings taken out by the respondent are valid and binding on the appellant who did not care to intervene as an assignee of the judgment-debtor and he would have lost all rights. But we have the second suit (O.S. 116 of 1924) and during, the pendency of the decree, i.e., after the. decree was passed, and while it was unsatisfied, the. sale in execution of the first decree extinguishing the mortgagor’s rights took place and the appellant contends that this execution purchase is affected by the doctrine of lis pendens and cannot affect his own right to sell the mortgagor’s interest (subject to the respondent’s rights of maintenance). In reply to this contention the respondent’s vakil, Mr. S. Panchapagesa Sastry, relies on the decision in Venkatarama Ayyar v. Rangian Chetty A.I.R. 1924 Mad. 449 (F.B.). As we interpret-that decision, it is not a general decision that there cannot be a second application of lis pendens somewhat modifying the effects of the first application of the doctrine of lis pendens, but only a decision on the particular facts of the case.

3. The two rival parties were parties to the second suit, (O.S. 1 of 1889) and our construction of the decree in it was that the first suit can be executed without any lis pendens due to the second suit. If the decree-holder in the second suit seeks to redeem the first decree-holder, she cannot do so in O.S. 1 of 1889 or not at all if the decree was not in proper form. But here the facts are different. Up to this stage, the parties have not. met face to face. If we can give effect to the second lis pendens, we ought to do so and safeguard the mortgagee’s rights,, provided we do not affect the respondent’s right of obtaining her maintenance by execution of the decree. Now it is clear-that a sale of the property in execution of the second decree subject to the rights of the respondent is feasible and does not affect the respondent’s rights. Only if such a method is impossible, i. e., only if it can be said that giving effect to the second lis pendens destroys altogether the benefit of the first lis pendens that. one can hold that the second lis pendens cannot be recognized. This is not such a case.

4. The result is that both the applications of lis pendens have to be recognized. If the appellant is desirous of bringing the property to sale, he must pay down all amounts of the arrears of maintenance that have accrued due to the respondent not only up to now, but up to the sale, and then apply for sale subject to the future maintenance rights of the respondent under the decree which will be mentioned in the proclamation. Whoever is the purchaser, whether appellant or another, is bound to pay the future maintenance due to the respondent. If there as default in payment the respondent will be entitled to execute her maintenance decree by applying for sale after giving notice to the purchaser. She will be so entitled to give notice to the purchaser and then apply for sale. It cannot be said that this additional burden of giving notice to the purchaser is such a disability that her right of recovering “the maintenance under the decree is affected. We set aside the order of the Courts below. If the appellant applies for sale, the District Munsif will have to pass orders in accordance with the above observations. If not, there are no further orders to be passed by the Courts below. Bach party will bear his own costs. It is not open to the appellant or to the future purchaser in the mortgage decree to question the executability of the maintenance decree of the respondent. That matter is finally settled by the sale already effected. Apart from it, we also think that the decree is executable.

5. Each party will bear his own costs in this appeal and in the memorandum of objections. In the Courts below, the respondent will have her costs.

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