JUDGMENT
Satyanarayana Rao, J.
1. The plaintiff is the appellant in this second appeal. The only question that falls to be decided in this second appeal, is, whether the title of the fourth defendant who claims the suit properties should prevail over the title of the plaintiff. The first and second defendants in the action are Brothers. The second defendant mortgaged his undivided half share in the family properties to his brother, the first defendant. As the second defendant did not pay the mortgage amount, the first defendant as plaintiff instituted a suit ‘in forma pauperis’ (O.S. No. 361 of 1948) on the file of the Chingleput District Munsif’s Court for enforcing the mortgage. There was a compromise decree in that suit on 18th March, 1939. Under the compromise, the parties agreed to a decree for Rs. 1545 with sub-sequent interest to be paid by the first defendant to the plaintiff. As the suit was instituted in ‘forma pauperis’, the compromise provided also for the payment of the court-fee due to the Government. Under Clause (6) of the decree, it was provided that
“the plaintiff do pay Rs. 41-3-9 and the defendant do pay Rs. 123-11-3 to the Government on account of court-fee due to them and that the respective shares of the parties in the suit properties do stand a charge for the Court-fee due to the Government.”
The suit properties are described in two schedules which were attached to the plaint and also to the decree. The suit property was, according to the schedules, the undivided half share of the defendant in the survey numbers whose particulars wore given in the two schedules. Under this decree, however, the mortgagee’s right to bring the properties to sale was restricted to a few items which are described in detail in schedule IV attached to the decree.
The plaintiff in that action, i.e., the present first defendant paid the court-fee due to the Government. But the present second defendant who was the sole defendant in that action did not pay his share of Rs. 123-11-3. The Government, therefore, brought to sale the interest of the present second defendant in 3 items of property which constituted items 4, 6 and 7 of the schedule II attached to the decree in O.S. No. 361 of 1938. The items sold were survey No. 238/2 (17 rents), Survey No. 213/2 (36 cents), Survey No. 214/1 (35 cents), in all 88 cents and the fourth defendant in the present suit purchased them on 22-3-1941. The sale by the Government was through court and was not a revenue sale. The mortgagee, i.e., the present first defendant, executed his decree for sale and the hypotheca which was permitted to be sold under the compromise decree was purchased by the decree-holder himself on 26-11-1941. The present first defendant who was the decree-holder in his turn conveyed the property so purchased by him to the present plaintiff under Ex. P. 6 dated 10-5-1943. The first defendant who owned the other undivided half in all the properties in his turn sold away his interest in the properties on 6-10-1939 under Ex. D. 2 to the third defendant. The plaintiff who became the ultimate purchaser of the interest of the second defendant in the items which were directed to be sold under the compromise decree instituted the present suit for partition and separate possession of the properties impleading as parties to the action the two brothers the first and the second defendants, the mortgagee and the mortgagor and the third defendant who purchased the interest of the first defendant and the fourth defendant who purchased the three items in the sale brought about by the Government to recover the court-fee.
2. The plaintiff obtained a decree for partition and separate possession of all the items except the three items which the fourth defendant purchased in the sale by the Government. The courts below held that the title of the fourth defendant to these three items should prevail over that of the plaintiff.
3. The correctness of this decision was vigorously canvassed before us by Mr. Gopalaswami Aiyangar, the learned advocate for the appellant, on various grounds. In the first place, he raised the question that in view of the language of the decree in O.S. No. 361 of 1938 the charge in favour of the Government has no priority because the decree did not expressly state so. It is no doubt true that the decree is silent regarding the priority of the charge in favour of the Government. But under the Code, the charge in favour of the Government is declared to be the first charge on the subject matter of the suit. We must, therefore, take it that notwithstanding this omission in the decree, the charge in lavour of Government for the court-fee payable by the second defendant would undoubtedly be a first charge and would have a priority over the mortgage in favour of the first defendant. The language of the decree which refers to the respective shares of the parties in the suit properties and creates a charge for the amount apportioned between the two brothers no doubt creates some little difficulty because in the suit property which is only the undivided half share of the second defendant the present first defendant who was the plaintiff in the action had no share or interest. He was the owner of the other undivided half which was not the subject-matter of the suit. It was contended on behalf of the respondent that we should interpret the word “shares” as really meaning the “interest” of the respective parties in the hypotheca, i.e., the interest of the plaintiff as mortgagee and the interest of the defendant as mortgagor. We think that it would be inapt to describe the intention of the mortgagee in the properties as a share in the property and therefore, it is difficult to accept the contention urged on behalf of the respondent. The intention under the decree which is a compromise decree is clearly to create a charge on the undivided half share of the defendant in all the items of properties described in the two schedules and that charge, in view of the language of Order 33 Rule 10 C. P. C., would undoubtedly have priority over the mortgage in favour of the present first defendant.
4. The next question is, whether the sale was free of encumbrances or could only be subject to the mortgage in favour of the present first defendant. The sale in the present case was through court and was not a revenue sale. In 1942 this court amended Order 33 by introducing Rule 14 enabling the Government to realise the unpaid Court-fee in pauper suits by bringing the property to sale as if it were an arrear of land revenue. If there was of course a revenue sale, the further question whether, by virtue of the language that the liability should be enforced as if it were an arrear of land revenue, it would attract also all the provisions of the Revenue Recovery Act, including the section which annuls the prior encumbrances may have to be considered. But that question does not arise in this case, as the sale was in 1941 before the amendment was introduced in 1942. The sale must, therefore, be taken to be subject to the encumbrances and not free from encumbrances. This position was not disputed by the respondent.
5. The only other question is as between the two purchasers, whether the prior purchase by the fourth defendant should prevail over that of the plaintiff’s predecessor in title. On the principle of the Full Bench decision in –‘Nagendran Chettiar v. Lakshmi Ammal’, AIR 1933 Mad 583 (F. B.) (A), the title of the fourth defendant should undoubtedly prevail. But the learned Judges in that case stated that the principle would apply, only if there is no complication of ‘lis pendens’. Taking advantage of this observation, an argument was founded in this case that the sale in favour of the fourth defendant was subject to ‘lis pendens’, as the mortgage decree in favour of the present first defendant in the earlier suit was not satisfied by that date. This contention, however, cannot be accepted, as there is no question of any ‘lis pendens’ in this case as the rights of both parties flow from sales which have been brought about under the provisions of the compromise decree. There was no independent proceeding which was initiated by the plaintiff’s predecessor during the pendency of which the sale in favour of the fourth defendant took place. When the properties were brought to sale, in pursuance of the same decree, it is difficult to apply any principle of ‘lis pendens’ to the earlier sale.
6. It was then claimed by Mr. Gopalaswami Aiyangar, the learned advocate for the appellant, that his client should at least be given an opportunity to redeem the first charge and recover possession of the property for, according to him no such opportunity was ever given to him in the proceedings for the sale of the properties by the Government. This argument also cannot be accepted. The necessity for the charge was the pauperism of plaintiff’s predecessor-in-title, the first defendant, who was mainly liable to pay the court-fee to the Government. But by compromise there was an apportionment of that liability. It is the compromise decree that created the charge on the undivided half share of the second defendant in all items of the property covered by the two schedules attached to the decree for the portion of the liability which was thrown on the second defendant under the said compromise. The plaintiff, the present first defendant, did not provide for himself any right of redemption and he was aware throughout that under the decree and in view of the provisions ot the Civil Procedure Code contained in Order 33 Rules 10 and 12 in enforcement of the charge in favour of the Government, the property of the second defendant could be sold in default of payment by him and it was up to him to have claimed the right of redemption if he was so minded and not to wait until after the sale had taken place and then claim it in the present action. He had ample opportunity from the beginning to pay the Government the sum of Rs. 123 and odd for which a charge was created and he never availed himself of that opportunity, but allowed the properties to be sold in pursuance of this very decree. He cannot, therefore, be given a further opportunity to redeem the fourth defendant, the auction purchaser, in pursuance of the charge decree in favour of the Government.
7. For all these reasons, we think that the decision of the lower court is correct and the second appeal is dismissed with costs.