Jayaram Mudaliar v. Ayyaswami & Ors.

. The learned counsel for Defendant No. 12 urged that Rule 28 of Order 4 was ultra vires. Two points thus arise out of the con­ tentions of the parties : ( 1) Is Rule 28 of Order 4 of the Rules"Of the High Court of Madras Appella'le ·Side ultra vires ? ( 2) Are the Sales by Ex. B7 and Ex. BS I hit by the rule of lis pendens ? Clause 15 of the Letters Patent inter alia provides for an appeal to the High· Court from a judgment of one judge made in exercise of the appellate jurisdiction in respect of a decree or order . made in the exercise of appellate jurisdiction by a court subject to its superintendence, where the Judge who passed the judgment declares that the case is a fit one for appeal. Clause 3 7 of the Letters Patent confers powers on the High Court to make rules and orders for the purpose of regulating all proceedings in civil cases. This Court held in The Union of India v. Ram Kanwar(1) that under cl. 27 of the Letters Patent which is in similar terms as cl. 37 mentioned above, the High Court of Judi­ cature a1t Lahore had the power to make a rule prescribing the periud of limitation in respect of appeals from Orders made by that Court in exercise of its original jurisdiction to a Division Bench of that Court. It seems to m~ that the High Court can equally frame a rule regulating the itirne at which and the manner in which the application for a certificate shall be made. Rule 28 of Order 4 does not 1ake away any right conferred by cl. 15 of the Letters Patent. It only regulates the manner of the ·~xercise of that right. · It was said that the rule unduly restricts the right of the litigant to peruse the judgment and m&ke up his mind whether to appeal or not. But if the declar~tion is made immediately by the Judge that the case is fit one for appeal there is nothing to prevent ithe litigant from not filing the appeal if he considers it inadvisable to do so. I need not discuss the point whether the Judge will have the right to condone a breach of the Rule because no application seems to have been made to condone the breach of the Rule. But this conclusion does not render the appeal before us incompetent. Leave was given by this Co11rt after hearing the respondents. on October 14, 1968. On April 22, 1969 the respondents obtained .an order from this Court for expediting the hearing. No appli­ cation was made at that stage to raise the point of incompetency of appeal. In the circumstances I consider that the appeal should be disposed of on merits. Coming to the second ·point, this Court has co'1sidered the scope of s. 52 of the Transfer of Property Act and the rule of lis pendens in a number of cases. There is no difficulty in holding that Ex. B7 falls within the provisions of s. 52 of the Transfer of Property Act. But Ex. BS 1 stands in a different position. It was held in Samarendra Nath Sinha & Anr. v. Krishna Kumar Nag(') that the principle of lis pendens applies even to involuntary 'aliena­ tions like court sales. Shelat J., observed : "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 nght, title and interest from or 0) [1962] 3 S.C.R. 313. (2) [1967] 25.C.R.18, 28. 11 / '• .B JAYARAM MUDALIAR v. AYYASWAMI (Sikri, C.J.) 159 through him. This principle is well illustrated in Radha­ mabhub Holder v. Monohar(') whe.re the f.acts were almost similar to thosein the instant case. It is true that s .. 52 ~trictly speaking does not apply to involuntary alienations such as court sales. But it is well-established t.hat the princ.iple of /is pendens appli~ to su_ch aliena­ tions. [See Nzlkant v. Suresh Chandra(') and Motilal v . Karrabuldin( 8 ) .] These observations were referred to with approval by this Court in Kedar Nath Lal v. Ganesh Ram('). If the principle of /is pendens applies to coun auctions there is no reason why it should not apply to revenue sales. But the effect of the applica­ tion of the principle may vary according to the nature of the pro­ visions under which the revenue sale is held. The principle of /is pendens does not affect pre-existil)g rights. If there is a valid charge or mortgage on a property, this does not vanish because the property becomes the subject-matter of a partition suit. lri this case according to defendant No. 12 a valid charge subsisted · on the lands by virtue of the provisions of the Land Improvement Loans Act. Under s. 7 of the Land Improvement Loans Act loans 'are recoverable by the Collector in all or any of the follow­ ing mode~, namely : (a) from the borrower as if they were arrears of land revenue due by him; (b) (c) (d) ............ out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land; ............ The proviso to s. 7 reads : "Provided that no proceeding in respect of any land under clause ( c) shall affect any interest in th~t land which existed before the date of the order grantmg the Joan; other than the interest of the borrower, an~. of mortgagees of, or persons having charges on,. that 1n!e­ rest and where the loan is granted under Section 4 with the' consent of another persons. the interest ?f that per­ son, and of· mortgagees of, or persons haVIng charges on, that interest." · Section 42 of the Mad.ras Revenue Recovery Act provides that all I.ands brought to sale on account of arrears of revenue shall ~ sold free of all encumbrances. lfhe liability of the land to be 50 (I) IS I.A. 97. {3) 24 I.A. 170. ·. (2) 12 I.A. 171. . . -(4) [1970] 2 S.C.R. 204 under s. 7 ( c) of the Act was a pre-existing charge and that sub­ sisted as from the date of the loan. This was not affected by the institution of the suit for partition. This charge could be enforced by the Stai:e notwithstanding the pendency of the partition suit. No decree in the Partition suit could have effaced the charge. Therefore, if the State has sold only the property in respect of which loan was taken, the purchaser-defendant No. 12-is not B prejudiced by th~ principle of /is pendens. Therefore, the direction of the High ~ourt was right insofar as it directed the Trial Court to separate the properties for the improvement of which the loans under the Land Improvement Loans Act were taken, from the other prope,rties. In the result the appeal fails and is dismissed. G.C. Appeal dismissed.