Prem Narain Aggarwal vs Basheshar Dass And Ors.
1970 Latest Caselaw 243 Del

JUDGMENT

Hardayal Hardy, J.

(1) This First appeal from a decree passed by a subordinate Judge raises the question of application of Section 47 of the Code of Civil Procedure and the principle underlying Section 52 of the Transfer of Property Act, 1882 to the facts of the case. Section 47 has been on the statute book for over 60 years while its predecessor, Section 244 of the Code of 1882 which was in terms similar to the present section has been there for a little less than ninety years. The provisions of these two sections have therefore come up before the courts again and again and an enormous mass of case- law has grown around them. And yet so large is the variety of situations in which Section 47 has been considered that there is hardly a case which can be regarded as affording an exact parallel to another.

(2) Section 52 of the Transfer of Prpoerty Act was not in force in Delhi before 1962, but the principles underlying that section were applied by courts to cases arising in the Punjab and Delhi as embodying the rules of equity and good conscience.

(3) In the instant case the task of applying the above sections is however rendered difficult by the attitude adopted by the parties. Both sides appear to have kept back from the court as much of relevant material as they could. Luckily, however, it transpired that although certain material documents were with-held by the parties their existence could not be denied as they happened to be included in the printed records of appeals (RFA No. 267 of 1939 of the High Court of Judicature at Lahore and Rfa No. 46 of 1948 of the High Court of Judicature for the Province of East Punjab at Simla), which related inter alia to the property in dispute. With the consent of the parties' counsel therefore, we had those printed records placed before us at the hearing of the appeal, and it was agreed that the relevant documents might be read in evidence.

(4) The undermentioned facts have been gleaned partly from the documents contained in the printea paper books referred to above and partly from the records of the prasent appeal.

(5) The property is dispute is a piece of un-divided land known as Mubarik Wali, measuring about one thousand square yards abutting on the Subzi Mandi Road, near the Ice Factory. In 1934 boundaries were as under :- East : Wall of the Ice Factory throughout the width of the plot. West: Passage for communication. South: Wall throughout the length of the plot. North: Main entrence door, public foot-path and a public road.

(6) Half of this land measuring about 500 square yards was owned by Ram Gopal Sant Lal while the rest of it was owned by Sunder Lal and his brother Benarsi Das residents of Jagadhri, District Ambala. By a registered sale deed dated the 26th July. 1934 (Ex. D. 16 in the file relating to Rfa No. 267 of 1939) Sunder Lal and Benarsi Das sold about 250 square yards i.e. half of the said 500 square yards of undivided land owned by them, to Haji Mohammed Yahya resident of Bara Hindu Rao, Delhi.

(7) On the same day, by another registered deed of sale (Ex. D. 15 in the above-mentioned file) they sold the remaining about 250 square yards of land to their sister Shrimati Phuli who was wife of Lala Suraj Bhan of Pahari Dhiraj, Sadar Bazar Delhi. The boundaries of the property sold to each of the two vendors, i.e. Haji Mohammad Yahya and Shrimati Phuli, as shown in the afore-mentioned sale deeds are, boundaries of the entire land.

(8) Shrimati Phuli also purchased about 250 square yards out of the same land, under a sale deed executed by Lala Panna Lal son of Lala Bishambar Nath, in the fictitious name of her nominee Lala Chuni Lal Bhatia, on 4th January, 1935 and registered on 10th January, 1935. The property continued to remain in the name of Lala Chuni Lal Bhatia till 12th March 1943 when she got it transferred in her own name by a deed which was executed on that day and registered on 25th March, 1943.

(9) On 26th April, 1935 one Nandu Mal son of Lala Baij Nath purchased the remaining 250 square yards from the Official Receiver, Laia Basheshar Nath in the insolvency of Bhondu Mal and others.

(10) It will thus be seen that by the end of 1935 the entire land measuring about 1000 square yards passed out of the hands of the original owners and came into hands of : (1) Haji Mohammed Yahya .. .. About 250 sq.yds. (2) Smt. Phuli and her nominee Lala Chuni about 500 sq. yds. Lal Bhatia. (3) Lala Nandu Mal ., .. , about 250 sq. yds.

(11) Shrimati Phuli's husband Lala Suraj Bhan was a member of a joint Hindu family along with his father Lala Pirbhu Dyal and his brothers Janeshwar Das, Basheshar Das, Hem Chand, Deputy Pershad and their mother Shrimati Anguri. The record shows that Lala Pirbhu Dyal became a lunatic and his son Suraj Bhan grossly mismanaged and frittered away the joint family property. On 7th August, 1937 therefore a suit for the partition of the property was filed by Lala Pirbhu Dyal through his next friend and wife Shrimati Anguri Devi against Lala Suraj Bhan. Janeshwar Das, Basheshar Das, Hem Chand "and their mother also joined in that suit as plaintiffs while Suraj Bhan, his wife Shrimati Phuli and his brother Deputy Pershad were imp leaded as defendants- Haji Mohammed Yahya and some others were also imp leaded as defendants. Shrimati Phuli and Haji Mohammed Yahya were imp leaded as defendants because it was alleged that the property purchased in their names, actually belonged to the family and that Lala Suraj Bhan had fraudulently transferred it in the first instance, to his wife's brothers, Sunder Lal and Benarsidas and then got it re-transferred in the names of his wife and his friend Haji Mohammed Yahya.

(12) The suit for partition was decided by the Court of Sayad Ghulam Rabbani, Sub-Judge 1st Class Delhi and a preliminary decree for partition was passed on 20-6-1941. Against that decree an appeal was filed in the High Court of Judicature at Lahore which was dismissed on 14-4-1947. Further appeal to the Supreme Court was also dismissed on 6-2-1953 and a final decree for partition was passed on 8-11-1955.

(13) In due course, we shall have to refer to this final decree as the present appeal owes its origin to the decree-holders' attempts to execute that decree. During the pendency of the partition appeal before the High Court of Judicature at Lahore, Shrimati Phuli, Haji Mohammed Yahya and Lala Nandu Mal joined together in one sale deed which was executed on 16th April, 1943 and registered on 20th April, 1943 and transferred their right, title and interest as joint owners in the entire land measuring about 1000 square yards to Sheikh Abdul Karim Multani for Rs. 40,000.00.

(14) One Shri Shiv Narain son of Lala Prag Narain who was the owner of the Ice factory adjoining the plot in question towards its East, challenged the sale in favor of Sheikh Abdul Karim by a suit for pre-emption instituted by him on 29-4-1944. In the said suit the three vendors and Sheikh Abdul Karim were imp leaded as defendants. The suit was decreed in favor of the plaintiff Shri Narain on 27-2-1948.

(15) During the pendency of the pre-emption suit, Lala Shiv Narain filed an application dated the 7th July, 1947 (Ex. D. 1) wherein he recounted the early history of the litigation between the members of Pirbhu Dyal's family and referred to the decision of the Lahore High Court dated 14-4-1947, in the partition suit. He also stated that the sale deed dated the 16th April, 1943 was executed during the pendency of the partition suit and therefore the defendants-vendors were bound by the decision of the High Court. He further stated that according to the High Court's decision, the vendors had no right of ownership with regard to 333.1/3 square yards of land out of 1000 square yards sold to Sheikh Abdul Karim nor could they transfer the same to the vendee. He therefore prayed for an amendment of his plaint so as to confine his right of pre-emption to 666.2/3 square yards only which alone hade passed into the ownership of the vendee.

(16) The judgment and decree dated 27-2-1948 passed by Shri Gulal Chand Jain, Sub-Judge 1st Class, however shows that Shiv Narain's suit was decreed in respect of the entire land measuring 1000 square yards on payment of Rs. 41,180.00 within one month from the date of the decree. ' Sheikh Abdul Karim preferred on appeal (RFA No. 46 of 1948) against the decree in the High Court of Judicature for the Province of East Punjab but the appeal was dismissed on 6-3-1952.

(17) In pursuance of the pre-emption decree, Shiv Narain and his brothers paid the price of land and took possession of the land. Subsequently there was partition among Shiv Narain and his brothers and as a result, the pre-empted land came to the share of Prem Narain Aggarwal who is plaintiff in the suit that has given rise to the present appeal.

(18) We may now refer to the final decree for partition in the suit filed by Pirbhu Dyal and his sons which was passed on the basis of the report submitted by the Local Commissioner appointed under the preliminary decree. The portion of the final decree which is relevant for the purpose of this appeal reads as under :- "THISland is known as Bhartarkwali (sic) Subzimandi, Delhi. This belongs to the plaintiffs and the defendants Mst. Phooli and Mohammed Yahya. The plaintiffs' share is 2/3 which I am required to separate. The correct plan of whole land is Ex. C. The land marked Abcdef together with chhapar over it shown in red in Ex. C is allotted to the plaintiffs. It is bounded by Cd which is 51 feet 6 inches and in the west by De and Af which are 24 "and 39-6" respectively. The land marked Gafedh along with Khaprails over it and marked blue in Exhibit C is allotted to defendants Mst. Phooli and Mohd Yahya in excess of their shares. The plaintiffs should pay Rs. 200.00 to defendants for the value of the excess land. The whole land is 539¬ square yards."

(19) After the passing of the final decree the decree-holders, Basheshar Das, Janeshwar Das, Hem Chand and their mother Shrimati Anguri Devi (Pirbhu Dyal having died during the pendency of the appeal in the High Court), filed an application for the execution of the final decree and prayed for a warrant of possession being issued in respect of the land allotted to them. It appears that a warrant of possession was actually issued, but it was subsequently withdrawn without being executed.

(20) On 10-5-1956 Prem Narain filed an objection petition which was dismissed by Shri J. M. Tandon, Sub-Judge 1st Class, vide his order dated the 12th May, 1958. The learned Subordinate Judge while dismissing the objection-petition held:- (i) that in the suit for partition the plaintiff decree- holders were held to be the owners of 2/3rd share of 500 square yards of land in the entire piece of land measuring 1000 square yards; (ii) that since the objector or his predecessor-in-interest had acquired this piece of land during the pendency of the partition suit, the sale by Shrimati Phooli and others was hit by the doctrine of Us pendens, which meant that the objector was bound by the decree in the suit for partition to the same extent to which Shrimati Phuli and Haji Mohammed Yahya were bound by it; (iii) that by a fiction of law, the plaintiff was to be presumed to be a party to the proceedings in the partition suit. He was therefore bound by the decree in that suit for the purposes of the execution application; (iv) that although Nandu Mal from whom the objector's predecessor-in-interest had purchased a part of the land in dispute, was not a party to the partition suit it was not open to the objector to .say that he was not bound by the decree to the extent of the property purchased from Nandu Mal, because so far as the objector is concerned, he is bound by the decree for the purposes of the execution application; (v) that the objector was not in possession of the property in his own right and that he was liable to be evicted in execution of the decree.

(21) It may be mentioned here that the objector had contended before Shii J. M. Tandon that his predecessor-in-interest had purchased 500 square yards of land from Nandu Mal as against 500 square yards purchased from Shrimati Phuli and Haji Mohammed Yahya. Actually only 250 square yards of land had been purchased from Nandu Mal and the remaining 250 square yards were purchased from Haji Mohammed Yahya and 500 square yards from Shrimati Phuli. The objector Prem Narain was dis-satisfied with the order passed by Shri J. M. Tandon, but instead of filing an appeal agaist it, he instituted on 2-6-1958 a suit against the sons and widow of Lala Pirbhu Dyal, namely, Basheshar Das, Janeshwar Das, Hemraj, Shrimati Anguri, Suraj Bhan and Deputy Pershad- The relief sought by him was for a declaration to the effect that he was the owner in possession of the land in suit and was not liable to be dis-possessed in execution of the final decree passed on 8th November 1955 in the suit: Pirbhu Dyai and others versus Suraj Bhan and others and that the defendants Basheshar Das, Janeshwar Das, Hemraj and Shrimati Anguri were not entitled to take possession of the said land which was shown in red colour in the plan annexed to the plaint.

(22) On 24th April, 1959, the plaintiff filed an amended plaint in which Janeshwar Das defendant No. 2 who was found to be insane was sued through his brother Basheshar Das, defendant No. 1, as his guardian-ad-litem. The jurisdictional value of the suit was also reduced with the consent of the parties, to Rs. 15,000.00 instead of Rs. 20,000.00.

(23) Defendants I to 4 contested the suit on the ground that the executing court having held by its order dated 12-5-1958 that the plaintiff Prem Narain shall be deemed to be a party to the partition suit, his remedy, if any, lay in filing an appeal against that order and that no separate suit was competent. The plaintiff's plea that he was the owner in possession of the property in dispute in his own right was controverter and it was also asserted that the' plaintiff was bound by the declaration made by Lala Shiv Narain in the application dated 7-7-1947 (Ex. D.I) which he had filed in the pre-emption suit that he would be bound by the decree obtained by defendants I to 4 in the partition suit and that the sale which he was seeking to pre-empt would be hit by the doctrine of Us pendens.

(24) The trial court held that the plaintiff was a representative of one of the parties to the partition suit and was therefore bound by the decree passed in that suit. It also held that the question raised in the suit was one relating to the execution of the decree. As the executing court had given a decision against the plaintiff his remedy lay in appeal against that decision and a separate suit was not maintainable. The trial court further held that in the parition suit, defendants I to 4 were held to be the owners of 2/3rd share of 500 square yards of land of land measuring 1000 square yards. Since the plaintiff or his predecessor-in-interest had acquired that much of land during the pendency of the suit for partition the sale by Shrimati Phuli and Haji Mohammed Yahya was hit by the doctrine of Us pendens. Its effect would be that the plaintiff was bound by the decree to the same extent to which Shrimati Phuli and Haji Mohammed Yahya were bound by the same. He could not therefore be said to have validly purchased the 2/3rd share in the undvided portion of 500 square yards as his predecessor-in-interest were not competent to sell that much land.

(25) Before the trial Court, the plaintiff had also raised an objection that the final decree was defective as the court could not partition 2/3rd share out of 500 square yards because the said piece of land had itself not been demarcated and separated from the whole piece measuring 1000 sq. yards. The objection was repelled and it was held that such an objection could not be raised in a separate suit. The plaintiff being a party to the partition suit was bound by the partition decree and his remedy was to file an appeal against the decree if he felt that the decree was defective in any manner.

(26) The trial court further held that the plaintiff was estopped from challenging the validity of the decree.

(27) At the hearing of the appeal, the' learned counsel for the appellant strenuously argued that the decree of partition was a nullity as regards the land in suit because it provided for partition of a share in a portion of thei land when there was no portition between the two un-divided shares of 500 square yards each and no relief was claimed in the suit for partition of the whole plot of land measuring 1000 square yards. plot of land measuring 1000 square yards. Shrimati Phuli and Haji Mohammed Yahya were no doubt imp leaded as defendants in the suit, but they had sold only a part of the un-divided land which was preempted by Lala Shiv Narain. The remaining part was sold by Nandu Mal who was not a defendant in the suit. In his absence any allocation of a specific portion of the un-divided land to defendants 1 to 4 could not be made in the final decree. To the extent the final decree made such allocation, it was without jurisdiction and therefore a nullity.

(28) It was argued that when the objection is to the validity of a decree such an objection can only be raised in a separate suit and is not entertainable by the executing court.

(29) In support of his argument the learned counsel cited a Bench decision of the Punab High Court in Smt. Durga Devi v. Shanti Purkash Thakar Das and others where it was said that when the challenge is to the validity of the decree it should be decided by a separate suit. Such an objection does not merely relate to the execution, discharge or satisfaction of the decree, but it really seeks to get the decree modified. Section 47 Civil Procedure Code does not apply to such a case.

(30) Learned counsel also cited the following cases to show that a separate suit was competent :- (i) Lloyds Bank Ltd. v. Mt. Rehmat Bibi (AIR 1939 Lahore 178),(2) (ii) Mahabir Singh -v-Narain Tewari and other ,(s) (iii) Ram Gopal and others v. Ajodhia Prasad and another ), (iv) Venkatakrishnayya and others v. Venkatanarayana Rao' and others and (v) A. Venkataseshayya and others v. A. Virayya and others. (AIR 1958 A.P. ] F.B.),

(31) The case of Shrinuni Durga Devi deals with execution of a mortgase decree in which the legal representative of the mortgagor who was imp leaded in the course of execution proceedings objected to thei validity of the decree. It was held that such a plea could only be' raised in a separate suit. The same was the case before Chandiraniani J. of Allahabad High Court in Ram Gopal and others v. Ajodhia Prasad and another where the validity of a mortgage decree was called in question in a separate suit by the plaintiffs who claimed to be the owners of the mortgaged property. The suit was resisted inter alia, on the' ground that the claim of the plaintiffs could have been decided under Section 47. The courts below accepted the objection and dismissed the suit. On second appeal the High Court allowed the appeal holding that a separate suit was maintainable.

(32) The case of Mahabir Singh is a Full Bench decision of Allahabad High Court where it was held that a person raising questions relating to execution, discharge or satisfaction of a decree should be cither party to the suit or the representative of the party at the time when the question is raised and that a question whether a decree a nullity on the ground that it was passed against a dead person, does not relate to execution of the decree and does not come under Section 47 so as to bar a separate suit.

(33) In Venkatakrishnayya's case the question before the High Court of Madras arose in the course of execution of a mortgage decree and it was held that the dispute raised by certain persons who claimed' to have occupancy rights in the property could be decided by the executing court in so far as parties to the suit werei concerned; but so far as strangers were concerned a regular suit had to be filed and Section 47 was no bar to such a suit.

(34) The decision of Lahore High Court in the case of Llovds Bank merely laid down the distinction between a mortgage decree and an ordinary money decree and held that an objection to the sale of the property made by judgment-debtor or his legal representative on independent suit.

(35) The Full Bench decision of Andhra Pradesh High Court in the case of A. Venkataseshayya and others') relates to sale of service Inam lands in execution of a mortgage decree and brings out the distinction between the question of jurisdiction of a court to entertain a suit and the rule of law which precludes a man from avowing the same thing in successive litigations. It was further held that the dispute as to execution of a decree contemplates the existence of a valid decree. If the dispute is that -the decree is without jurisdiction or is otherwise utterly null and void such a dispute ise not covered by Section 47 C.P.C. It is thus clear that none of the above cases has any bearing on the question raised before us. In the present case it cannot be said that the partition decree was passed by a court which had no jurisdiction or was otherwise null and void. As was held in the case of A. Venkataseshayya and others'), a mere error in the decree, if any.. will not render it invalid or null and void.

(36) It is true that Nandu Mal was not a party to the decree in the partition suit. If the partition decree was therefore sought to be executed against Nandu Mal, he could have successfully pleaded that he was no bound by the decree. But if the sale in favor of Sheikh Abdul Karim had not been pre-empted and a final decree was passed, Sheikh Abdul Karim who had derived his interest from 3 joint owners could not have asserted that he was not bound by the decree because Nandu Mal was not a party to the suit although two of the joint owners, namely Shrimati Phuli and Haji Mohammed Yahya were parties thereto and were bound by the decree. Sheikh Abdul Karim having purchased the un-divided interest of three joint owners had the same interest as Shrimati Phuli and Haji Mohammed Yahya and since they were bound by the decree so was he as their successor-in-interest.

(37) The preliminary decree in the partition suit was passed on 20-6-1941 while the sale in favor of Sheikh Abdul Karim was made on 16th April 1943 when the appeal against that decree was still pending in the High Court of Judicatour at Lahore. By that sale, the right, title' and interest of Nandu Mal in the land in question was completely extinguished by the transfer in favor of the vendee and he himself went out of the picture altogether. By that sale the un-divided interest of Shrimati Phuli and Haji Mohammed Yahya would have also been extinquished and Sheikh Abdul Karim, would have become the exclusive owner of the whole plot measuring about 1000 sq. yards. But the right, title and interest of Shrimati Phuli and Haji Mohammed Yahya was the subject-matter of litigation and had been sold to the vendee pendents lite'. The preliminary decree passed by the court of of a decree for partition for the entire land measuring 1000 square yards. of the land belonged to defendants I to 4 and they were entitled to partition and separate possession thereof. Shrimati Phuli and Haji Mohammed Yahya had appealed from the decree but before their appeal could be decided, they transferred their right, title and interest in the land to Sheikh Abdul Karim.

(38) It was open to the vendee. Sheikh Abdul Karim to have applied to the High Court for being brought on record as assignee of the interest of Shrimati Phuli and Haji Mohammed Yahya and to object to the decree on the ground that no decree for partition and separate possession in respect of a portion of the land could be passed in the absence of a decree for partition for the entire land measuring 1000 square yards. But he did not do so and allowed the preliminary decree to be confirmed by the High Court on 14-4-1947. A further appeal to the Supreme Court was also dismissed and a final decree for partition was passed on 8-11-1955.

(39) It is well settled that the right of pre-emption is merely a right of substitution. What the decree for pre-emption does is to substitute the plaintiff in the suit for the original purchaser and he takes the bargain as a whole. By the pre-emption decree passed in favor of Lala Shiv Narain on 27-2-1948, he took the bargain subject to the same rights and disabilities as Sheikh Abdul Karim and was bound by the partition decree in precisely the same manner; so was the plaintiff Prem Narain when the property devolved on him as a result of partition among the brothers. If Sheikh Abdul Karim could not have objected to the final decree after it was passed on the ground on which its validity is being assailed by the plaintiff, far less could the plaintiff and his predecessor- in-interest Shiv Narain do so. The decree being binding on Sheikh Abdul Karim and his vendors, Shrimati Phuli and Haji Mohammed Yahya, is equally binding on the plaintiff. It could neither be assailed before the executing court nor in a separate suit.

(40) We are therefore unable to accept the argument that the partition decree is invalid or is a nullity and that its validity can therefore be questioned in a separate suit. The authorities cited by the learned counsel for the plaintiff in which it has been held that an objection to the validity of a decree can only be raised in a separate suit and that Section 47 Civil Procedure Code does not bar such a suit, have therefore no application to the facts of the case. The partition decree was not a nullity even if it was wrong.

(41) Counsel for respondents I to 4 argued that the matter could also be approached from another angle. The application dated 7-7-1947 (Ex. D. 1) filed by Lala Shiv Narain in the pre-emption suit which is printed at pages 82 to 85 of the paper book shows that he was fully aware of the fact that Shrimati Phuli and Haji Mohammed Yahya had no right of ownership in land measuring 333i square yards. He therefore sought to pre-empt by way of amendment of the plaint the remaining 666 2/3 square yards of land only on payment of the proportionate price. He was also aware of the fact that the preliminary decree which had by then been confirmed by the High Court of Lahore. had awarded to the defendants I to 4, 333 1/3 square yards of land and it had also recognised their right to separate possession in respect thereof. Being fully aware of the partition suit and the preliminary decree in favor of defendants I to 4, it was his duty to have got himself imp leaded in the proceedings, before the final decree after he found that In spite of his prayer for amendment of the plaint, he had been saddled with the responsibility of taking the bargain as it was, and a decree for pre-emption in respect of the entire land measuring 1000 square yards was passed in his favor. He could then raise whatever objections have now been raised by the appellant in his suit. The objection of the appellant in so far as it relates to the un-defined share of Nandu Mal is thus one that might and ought to have been raised at that stage and is as such hit by the rule of res judicata as contained in Explanation Iv of Section 11 of the Code of Civil Procedure. The argument is not without force but as the point was not raised before the trial court and was also not fully argued before us, we do not propose to rest our decision on it.

(42) Once it is held that the partition decree is binding on the appellant and respondents I to 4 are executing that very decree, the appellant's opposition to the decree obviously raises a question relating to the execution of the decree between the parties to the suit or their representatives. Such a question can only be decided by the executing court and a separate suit is barred under sub-section (1) of Section 47 Civil Procedure Code . see Bhika Mal v. Firm Ram Chander Babu Lal (AIR 1946 Lahore 134 F.B.)(T), Mt. Sant Kaur v. Teja Singh (AIR T946 Lahore 142) (8), Merla Ramanna v. Nallaparaja and others

(43) We have already said that the sale in favor of the appellant's predecessor was made during the pendency of the appeal against the preliminary decree passed in the partition suit. It is indisputable that qua the share of Shrimati Phuli and Haji Mohammed Yahya, the appellant is bound by the partition decree on the "basis of the rule of lis-pendens which applied to Punjab and Delhi even before Section 52 of the Transfer of Property Act was made applicable to Delhi.

(44) The application of the rule of lis pendens which received legislative recognition in Section 52 of the Transfer of Property Act, cannot be doubted. In Mool Chund and others v. Ganga Jal and others (AIR 1930 Lahore 356)(10) a Full Bench of the Lahore High Court applied the rule even to pre-emption cases. The above Full Bench decision was followed by a later decision of the same High Court in Mt- Sant Kaur v. Teja Singh and others (AIR 1946 Lahore 142) where Achhru Ram J. who delivered the opinion of the Full Bench, referred to the rule enunciated in WR. 1 Bellamy v. Sabine, (1857) 44 E.R. 842 to the effect that the law does not allow litigant parties pending the litigation to transfer their rights to the property in dispute so as to prejudice the opposite party and observed that the same rule had been enacted in Section 52 of the Transfer of Property Act.

(45) In Dhansingh and others v. Smt. Sushilabai Laxinarayan Gujar and others the doctrine of Us pendens was applied by a Division Bench of that Court to a transfer during the pendency of the appeal. In that case there was a decree for delivery of possession of certain land which was transferred to the transferee during the pendency of the appeal filed by the judgment-debtors. The transfer was made under a sale deed executed by the vendor who was not made a party to the appeal, but the transferee obtained possession of that land from the judgment-debtors- during the pendency of appeal. It was held that the doctrine of Us pendens applied and the transferee was bound by the decree passed against the judgment-debtors despite the fact that his vendor was not made a party to the appeal and that there was no decree against his vendor,

(46) As was held by Tek Chand J. in Simla Banking and Industrial Co. Ltd. v. Firm Luddar Mal Khushi Ram and others (") "the rule of Us pendens extends the scope of the rule of resjudicata, the principle of which is, that the parties and their privies art bound by the judgment of the Court. The rule of Us pendens goes a step further and lays down that whoever purchases a property during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derived his title, even though such a purchaser was not a party to the action or had no notice of the pending litigation." The learned Judge then went on to add that "I is a .rule of public policy for otherwise successive alienations will defet the very purpose of litigation, making it interminable. But "the effect (of the rule) is not to annul the conveyance but only to render it sub servient to the rights of the parties in the litigation. As to the rights of these parties the conveyance is treated as if it never had any existence. . .. . . ." (Story on Equity, Third Edition page 166 para 406 : see also Pomeroy's Equity Jurisprudence, Fifth Edition Volume 2 page 72 para 632 and 54 C.J.S. para 625.) "THEintention of the doctrine is to invest the Court with complete control over alienations in the res which is pendentelite, and thus to render its judgment binding upon the alienees, is if they were parties, notwithstanding the hardship in individual cases. Hardship is outweighed by public necessity."

(47) The observations of Story on Equity were approved by the Supreme- Court in Nagubai Ammal and others v. B. Shama Rao and others where it was held that "the effect of Section 52 is not to wipe out a sale pendente lite altogether, but to subordinate it to the rights based on the decree in suit. As between the parties to the transactions, however, it is perfectly valid and operates to vest the title of the transferor in the transferee."

(48) The rights owned by the appellant in the land acquired by him being thus subordinate to the provision in the final decree passed in the partition suit which in terms lays down that the land marked Abcdef together with chhapar over it shown in red in the plan Ex. C as per boundaries and dimensions mentioned in the decree, is allotted to the plaintiffs (respondents I to 4 in the present appeal), the appellant is bound by the decree and the said respondents are entitled to separate possession thereof.

(49) Counsel for respondents I to 4 raised one other point also which deserves to be noticed. He argued that the executing court had held that the appellant was to be deemed to be a party to the proceedings in the partition suit and was a representative of the judgment-debtors. Under sub-Section (3) of Section 47 that question had to be determined by the executing court. It was held in Ram Autar Sahu and others v. B. Bate Krishna and another that a decision by the court executing a decree that certain persons are the representatives of the judgment-debtors is a decision under Section 47 and is a decree against which an appeal lies. In that the question before the Court was whether a revision application lay from such an order and it was held that such an application did not lie We fail to see how a separate suit can be maintained against such a decision when no appeal was filed against that order. This is yet another ground in support of the contention regarding non-maintainability of the suit.

(50) For all the above reasons we are of the opinion that there is no merit in this appsal which must therefore be dismissed with costs. Order accordingly.