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PETITIONER: JAYARAM MUDALIAR

       Vs.

RESPONDENT: IYYASWAAR & ORS.

DATE OF JUDGMENT12/04/1972

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) RAY, A.N. BEG, M. HAMEEDULLAH

CITATION:  1973 AIR  569            1973 SCR  (1) 139  1972 SCC  (2) 200  CITATOR INFO :  RF         1973 SC2537  (14)  F          1975 SC1810  (18)  D          1981 SC 981  (2,3,4,12,16)

ACT: Transfer  of  Property Act 4 of 1882-S. 52-Doctrine  of  lis pendens,  applicability  of-Sale during pendency  of  suit.. when  invalid--Doctrine whether applies to voluntary  sales- Whether applies to sale under Land Improvement Loans Act  19 of 1883. Madras  High Court Appellate Side Rules, 1955-Rule 28  Order IV  validity of Rule.

HEADNOTE: The  plaintiff-respondent  filed  a suit  for  partition  of properties  men- the first defendant  (plaintiff’s  brother) was  the  Karta.   After the filing of the  suit  the  first defendant and his sons made a voluntary sale of some of  the properties  in suit by sale deed Ex.  B7, to the  appellant. Certain  other  suit properties mentioned in Ex.,  B51  were sold  at a public auction under the provisions of  the  Land Improvement Loans Act 19 of 1883 in connection with  arrears of a loan taken by the first defendant for the purchase of a pump  set.  These properties were also purchased  .by  the, appellant.  The plaintiff-respondent challenged the validity of  the  sales  under Ex.  B7 and Ex.  B51  relying  on  the doctrine of lis pendens embodied in s. 52 of the Transfer of Property  Act.   The .trial court held that the  sales  were genuine  and  that the proper-ties sold  were  joint  family properties, negativing the claim of the first defendant that they  were his individual properties.  The doctrine  of  his pendens  held to be applicable to the properties  sold.   In the  decree  for part however the trial court  directed  the Commissioner  who was to divide the properties by metes  and bounds to allot to the share of the first defendant, so  far as  possible, properties which were covered by Ex.   B7  and B51.  The High Court in second appeal held that although the sale under Ex.  B7 was made to satisfy the decree in certain mortgage  suits  it was a voluntary sale and  could  not  be equated  with sales in execution of mortgage  decrees  which are involuntary.  So far as the revenue sale under Ex.   B51

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was concerned the High Court after setting out the terms of s. 7 of Act 19 of 1883 held that only that land sold was  to be excluded from the purview of the principle of lis pendens for  the  improvement  of which some  loan  was  taken.   It therefore modified the decrees of the Courts below by giving a  direction that further evidence should be  taken  before’ passing  a  final  decree to show what land  could  be  thus excluded  from  partition.   The  High  Court  rejected  the application  of  the appellant for leave to  appeal  to  the Division   Bench  on  ’the  ground  that  no  oral   request immediately after delivery of judgment was made as  provided in  Rule 28 Order 4 of the Madras High Court Appellate  Side Rules  1965.  This Court however allowed special  leave  to appeal  under Art. 136 of the Constitution.  Apart from  the writs  the  Court had to consider  a  preliminary  objection requiring  the  appeal to be dismissed in limine.   In  this connection  the  validity of Rule 28 Order 4 also  fell  for consideration HELD  : (i) Per Ray and Beg, JJ.-Rule 28 of Order 4  of  the Madras High Court Rules does not purport to affect the power to  give  the declaration contemplated by clause 15  of  the Letters Patent.  It is evident that the rule is most  useful and necessary particularly when a period of thirty days only for  filing an appeal has been prescribed by the  Limitation Act  1963.   The judge pronouncing the judgment  can  decide then  and  there, in the presence of the  parties  or  their counsel,  whether  the case calls for a certificate.   In  a suitable case, where a party is able to prove that it 140 was  prevented  due to some cause beyond  its  control  from asking for leave at the proper time, the judge concerned may condone the delay or extend the time by applying s. 5 of the Limitation  Act.  This salutary rule could not therefore  be held to be ultra vires or invalid. [143 F-H] Penu Balakrishna Iyer & Ors, v. Sri Ariya M. Ramaswami  Iyer JUDGMENT: In the present ease although the appellant was not shown  to have  attempted any explanation of failure to apply for  the certificate  at  the proper time, yet,  the,  special  leave petition  having  been granted and the  case  having  passed without  objection, beyond the stage of interim  orders  and printing  of  records, the Court heard arguments  on  merits also. [144 F-G] Per  Sikri, C.J. (concurring)-The High Court  can   regulate the  time at which and the manner in which  the  application for certificate & WI be made.  Rule 28 Order 4 does not take away  any right conferred by cl. 15 of the  Letters  Patent. It only regulates the manner of the exercise of that right. Union of India v. Ram Kanwar, [1962] 3 S.C.R. 313,  referred to. (ii) Per  Ray & Beg, JJ.-Expositions of the doctrine of  lis pendens  indicate that the need for it arises from the  very nature of the jurisdiction of Courts and their control  over the  subject  matter  of  litigation  so  that  the  parties litigating  before  them  may not remove  any  part  of  the subject  matter outside the power of courts to deal with  it and thus make proceedings infructuous. [153C] The purpose of s. 52 of the Transfer of Property Act is  not to  defeat any just and equitable claim but only to  subject them to the authority of the Court which is dealing with the property  to which claims are put forward.  In  the  present case the Courts had given directions to safeguard such  just and  equitable  claims as the purchaser  may  have  obtained without   trespassing  on  the  rights  of  the   plaintiff-

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respondent  in the joint property involved in the  partition suit  before the Court.  Hence, the doctrine of lis  pendens was correctly applied.. [153H, 154A] In  regard  to  the sale under Ex.  B7 the  High  Court  had rightly distinguished cases cited on behalf of the appellant before  it by holding that exemption from the scope  of  lis pendens  cannot be extended to voluntary sales in any  case. [149 A] An  examination of the sale deed Ex.  B7 disclosed  that  it was  not confined to the satisfaction of  decretal  amounts. Other  items were also found in it.  The sale deed  did  not purport  to be on behalf of the Hindu joint family of  which the  plaintiff and the first defendant could be said  to  be members.   The  sons of the first defendant were  among  the sellers  but not the plaintiff.  At most it could be a  sale binding  on the shares of the sellers.  The first  defendant as  well as the appellant having denied that the  properties in  dispute were joint, could not take up the position  that the  sales were binding on the whole family.   Therefore  it could not be held that the assumption of the High Court that the voluntary sale could not bind the whole family, of which the first defendant was the Karta, was incorrect. Bishan   Singh   v.  Khazan  Singh,  [1959]   S.C.R-.   878, distinguished. As  regards the revenue sale under Ex.  B51  the  assumption that  the dues could be realised as arrears of land  revenue would only apply to the interest of the borrower so, far  as clause 7(1)(a) of Act 19 of 1883 is concerned.  The  proviso enacts that even recoveries falling under s. 7(1) (C) do not affect prior interests of persons other than the borrower or of  the  party  which consents to  certain  loans.   In  the present case the borrower had himself taken up the case that the  loan was taken by him individually, for the purpose  of purchasing a pumping-set installed. on the  141 land.   It did not therefore follow that this liability  was incurred On behalf of the joint family unless it amounted to an improvement of the joint land.  Every transaction of  the first  defendant  or  in respect of joint  property  in  his possession could not affect rights of other members. it  was for  this reason that section 7(1) (a) was not  specifically applied  by  the  High Court.  But at the  same  time,  the direction,  that  the  properties sold  should,  so  far  as possible, be allotted to the first defendant meant that  the purchaser  could enforce his rights to them if they came  to the share of the first defendant. [151D-F] Where  a statutory provision is relied upon for recovery  of dues, the effect of it must be confined to what the  statute enacts.  Even under the English law the terms of the statute displace  any claim based on the prerogatives of the  Crown. And  in no case can the claim whatever its basis, justify  a sale  of that property which does not belong to  the  person against whom the claim exists. [151H] Builders Supply Corporation v. The Union of India, [1965]  2 S.C.R.  289 and Attorney-General v. Dekerysis Royal  Hotel., Ltd., [1920] A.C. 508, referred to. Per Sikri C.J. (concurring)-Section 42 of the Madras Revenue Recovery  Act  provides that all lands brought  to  sale  on account  of  arrears of revenue shall be sold  free  of  all encumbrances.  The liability of the land to be sold under s. 7(c) of the Act was a pre-existing charge and that subsisted as from the date of the loans.  This was not affected by the institution of the suit for partition.  This change could be enforced  by the State notwithstanding the pendency  of  the partition suit.  No decree in the partition suit could  have

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affected the charge.  Therefore, if the State had sold  only the  property  in  respect  of  which  loan  was  taken  the purchaser  was  not  prejudiced  by  the  principle  of  lis pendens.   Therefore  the direction of the  High  Court  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 properties. [159H-160B]

& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2152 of 1968. Appeal by special leave from the _judgment and decree  dated July 19, 1968 of the Madras High Court in Second Appeal  No. 1173 of 1964. M.   C.  Chagla, R. Gapalakrishnan and T. L. Garg,  for  the appellant. M.   K.  Ramamurthi, Ramamurthy and Vineet Kumar,  for  res- pondents Nos. 1 and 6 to 9. The Judgment of A. N. RAY and M. H. BEG was delivered by BEG J. SIKRI C.J. gave a separate Opinion. Beg, J. Jayaram Mudaliar, the Appellant before us by Special Leave, purchased some lease hold land for Rs. 10,500/-  from Munisami  Mudaliar and others under a sale deed of  7-7-1958 (Exhibit  B-7)  and  some  other  lands  shown  in  a  sales certificate dated 15-7-1960, (Exhibit B-51) sold to him  for Rs.  6,550/- at a public auction of immovable property  held to  realise the dues in respect of loans taken  by  Munisami Mudaliar  under the Land Improvement Loans’ Act 19 of  1883. Both  Jayaram and Munisami, mentioned above, were  impleaded as co-defendants in a 142 Partition  suit,  in  Vellore, Madras,,  now  before  us  in appeal,  commenced by a pauper application  dated  23-6-1958 filed by the plaintiff-respondent Ayyaswami Mudaliar so that the  suit must be deemed to have been, filed on  that  date. The  plaintiff  respondent before us had challenged,  by  an amendment  of his plaint on 18-9-1961, the validity  of  the sales of land mentioned above, consisting of items given  in schedule ’B’ to the plaint, on the ground, inter-alia,  that these  sales, of joint property in suit, were struck by  the doctrine of lis pendens embodied in section 52 of the Indian Transfer of Property Act.  As this is the sole question,  on merits, raised by the appellant before us for consideration, we will only mention those facts which are relevant for  its decision. Before, however, dealing with the above-mentioned  question, a preliminary objection to the hearing of this appeal may be disposed of.  The Trial Court and the Court of first  appeal having  held  that the rule of lis pendens  applied  to  the sales  mentioned above, the appellant purchaser had filed  a second  appeal  in  the  High Court  of  Madras,  which  was substantially dismissed by a learned Judge of that Court, on 19-7-1968,  after  a modification of the decree.   Leave  to file a Letters Patent appeal was not asked for in the manner required  by Rule 28, Order IV of the Rules of  Madras  High Court, which runs as follows               "28.   When  an appeal  against  an  appellate               decree or order has been heard and disposed of               by  a  single  Judge, any  application  for  a               certificate  that  the case is a fit  one  for               further appeal under clause 15 of the  Letters               Patent  shall be made orally  and  immediately               after the judgment has been delivered."

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But, the appellant, after obtaining certified copies of  the judgment and decree of the High Court, sent a letter to  the Registry  that  the case be listed again  for  obtaining,  a certificate  of  fitness to file a Letters’  Patent  appeal. The case was, therefore, listed before the learned Judge and an  oral  application  which was then made for  grant  of  a certificate, was rejected on 6-9-1968 on the ground that  it had not been made at the proper time. It was contended, on behalf of the respondent, that, in  the circumstances stated above, the appellant must be deemed  to have  been satisfied with the Judgment of the High Court  as his Counsel did not ask for leave to file a Letters’  Patent appeal  as required by Order IV Rule 28 of the Rules of  the Madras  High  Court (that is to say, immediately  after  the judgment has been delivered). The following observations  of this  Court in Penu Balakrishna Iyer & Ors. v. Sri Ariva  M. Ramaswami  lyer  & Ors.(1) were cited to contend  that,  the appeal before us should be rejected in limine : (1)  [1964] 7 S.C.R. 49 @ 52-53 143 .lm15 "Normally, an application for special leave against a second appellate decision would not be granted un-. less the remedy of a Letters Patent Appeal has been availd of.  In fact,  no appeal  against  second appellate decisions  appears  to  be contemplated  by the Constitution .as is evident  from  the, fact  that Art. 133(3) expressly provides that  normally  an appeal will not lie to this Court from the judgment, decree, or  final order of one Judge of the High Court.  It is  only where  an  application for special leave  against  a  second appellate   judgment  raises  issues  of  law   of   general importance  that the Court would grant the  application  and proceed to deal with the merits of the contentions raised by the appellant.  But even in such cases, it is necessary that the remedy by way of a Letters’ Patent Appeal must  resorted to before a party comes to this Court". In reply to the preliminary objection, Mr. Chagla, appearing for  appellant,  has  assailed the  validity  of  the  above mentioned Rule 28 of Order IV itself.  It is submitted  that the  rule conflicts with the provisions of clause 15 of  the Letters’ Patent of the Madras High Court requiring only that the  Judge who passed the Judgment should declare  that  the case is fit one for appeal as a condition for appealing.  It was urged that the period of limitation for filing an appeal should not, in effect, be cut down by a rule such as the one found  in  Rule  28, Order IV of the Rules  of  Madras  High Court.   It  was  urged  that, before  article  117  of  the Limitation  Act of 1963 introduced a period of  thirty  days from  a decree or order for filing a Letters Patent  appeal, the  period  of limitation for such appeals fell  under  the residuary  article  181  of  the  old  Limitation  Act.   As applications for certification fen outside the provisions of the Civil Procedure Code and there was no specific provision for  them in the Limitation Act the High Court  could  frame its  own rule prescribing the mode and time for making  such applications. Rule  28  of  Order IV of the Madras  High  Court  does  not purport  to  affect  the  power  to  give  the   declaration contemplated by clause 15 of the Letters’ Patent,.  In  some High Courts, there is no rule of the Court laying down  that the  application should be oral and made  immediately  after the  judgment has been delivered.  It is,  however,  evident that  a  rule such as Rule 28 of Order IV  the  Madras  High Court  is  most  useful and necessary  particularly  when  a period  of  thirty days only for filing an appeal  has  been

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prescribed in 1963.  The Judge pronouncing the judgment  can decide  then and there, in the presence of parties or  their counsel,  whether  the case calls for a certificate.   In  a suitable  case, where a party is able to prove that  it  was prevented  due to some cause beyond its control from  asking for  leave  at  the proper time,  the  Judge  concerned  may condone non-compliance 144 by a party with Rule 28, Order IV, of the Madras High Court, or extend time by applying Section 5 of the Limitation  Act. This salutary rule could not, therefore, be held to be ultra vires or invalid. There is, however, another answer to the preliminary  objec- tion.   It was contended that the case before us is  covered by  what  was laid down by this Court  in  Penu  Balakrishna Iyer’s case (Supra) when it said (at page 53)                "..we  do not think it would be  possible  to               lay down an unqualified rule that leave should               not be granted if the party has not moved  for               leave  under the Letters Patent and it  cannot               be so granted, nor is it possible to lay  down               an  inflexible  rule that if in  such  a  case               leave  has  been granted it  must  always  and               necessarily be revoked.  Having regard to  the               wide  scope  of the powers conferred  on  this               Court under Art. 136, it is not possible  and,               indeed, it would not be expedient, to lay down               any general rule which would govern all cases.               The question as to whether the jurisdiction of               this Court under Art. 136 should be  exercised               or  not,  and  if  yes,  on  what  terms   and               conditions,  is a matter which this Court  has               to decide on the facts of each case". In  that particular case, this Court had actually heard  and allowed  the  appeal by Special leave because it  held  that there  was  no general inflexible rule  that  special  leave should be refused where the appellant has not exhausted- his rights by asking for a certificate of fitness of a case  and because that case called for interference. It  is urged before us that the appellant had done  whatever he  possibly  could, in the circumstances of  the  case,  to apply  for and obtain a certificate of fitness  after  going through  the  judgment of the High Court, so that  the  rule that alternative modes of redress should be exhausted before coming  to this Court had been really complied with.   Each. case must, we think, be decided upon its own facts.  In  the case before us, although the appellant was not shown to have attempted  any  explanation  of failure  to  apply  for  the certificate  at  the proper time, yet, +,he  special  leave petition  having been granted, and the case  having  passed, without  objection, beyond the stage of interim  orders  and printing of the records, we have heard arguments on  merits, also.  The merits may now be considered. The  challenge on the ground of lis pendens, which had  been accepted  by  the  Courts in Madras, right up  to  the  High Court,  was directed against two kinds of sales :  firstly,% there was the ostensibly voluntary sale of 7-7-1958 under  a sale  deed by the defendant Munisami Mudaliar and his  major son  Subramanian Mudaliar and three minor sons  Jagannathan, Duraisami alias                             145 Thanikachalam,  and Vijayarangam in favour of the  defendant appellant;  and, secondly, there was the sale  evidenced  by the,. sale certificate (Exhibit B. 51) of 15-7-1960  showing that the auction sale was held in order to realise  certain,

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"arrears  under  hire  purchase system due  to  Shri  O.  D. Munisami  Mudaliar. The words "due to" must in the  context, be  read  as  "due from"’ because  "falsa  demostration  non nocet". The deed of the voluntary sale for Rs. 10,5001/- showed that Rs. 7375.11 Ans. were to be set off against the money due on a.  decree obtained by the purchaser against the sellers  in original.  suit  2/56 of the Vellore Sub-Court ,  Rs.  538.5 Ans. were left to liquidate the amount due for principal and interest due to the purchaser on a bond dated 14-10-1957, by Munisami  Mudaliar,  Rs.  662.9 Ans. was to be  set  off  to liquidate another amount due to the purchaser from  Munisami on  account of the principal and, interest on  another  bond executed  by Munisami, Rs. 1250.0.0 was left to pay off  and liquidate  the  balance of a debt due  to  one  Thiruvenkata Pillai  from  Munisami, Rs. 100.0.0 were meant to  settle  a liability  to  the Government in respect of  a  purchase  of cattle and for digging of some well, Rs. 51.13 Ans. were  to go,  towards  settling  a similar liability,  and  only  Rs. 521.11 Ans. were paid in cash to the seller after  deducting other  amounts  for meeting liabilities most of  which  were shown  as  debts  to  the  purchaser  himself.   It  may  be mentioned  here that, on 17-1-1944, Munisami had executed  a mortgage  of  some of the property in Schedule  ’B’  of  the plaint for Rs. 7,500/  in favour of Kannayiram, and he  had executed  a  second  mortgage  in respect  of  one  item  of property  of  Schedule ’B’ in favour of Patta Mal,  who  had assigned  his rights to T. Pillai.  A third mortgage of  the first item of Schedule ’B’ properties was executed on  27-5- 1952  by Munisami, in favour of the appellant  Jayaram,  was said  to be necessitated by the need to pay arrears  of  Rs. 3,000/-  incometax and for discharging a debt and a  promote in favour of a man called Mudali.  In 1955, an original suit No.  124/1955 had been filed by T. Pillai who  had  obtained orders  for  the  sale of the first  item  of  Schedule  ’B’ properties shown in the plaint.  The original suit No. 2  of 1956 had been filed for principal and interest due on  27-5- 1952 to the appellant who had obtained an attachment on 5-1- 1956  of  some schedule ’B’ properties.  The  appellant  had obtained a preliminary decree on 25-1-1956 in his suit and a final decree on 14-9-1957.  All these events had taken Place before  the institution of the partition suit on  23-6-1968. But,  the  voluntary sale to satisfy  decretal  amounts  was executed   after  this  date.   The  second  sale   was   an involuntary   sale  for  realisation  of  dues   under   the provisions of section 7 of the Land Improvement Loans Act 19 of 1883 which could be realised as arrears of land  revenue. There  was nothing in the sale certificate to show that  the due for- 146 which  properties  were  sold  were  of  anyone  other  than Munisami individually. On the facts stated above, the appellant Jayaram claims that both kinds of sales were outside the purview of the doctrine of  lis  pendens  inasmuch as both the sales  were  for  the discharge  of  preexisting liabilities of  the  Hindu  joint family  of  which Munisami was the karta.   The  liabilities incurred  by  Munisami, it was submitted, as  karta  of  the family,  had to be met, in any case, out of  the  properties which were the subject matter of the partition suit.  It was urged that where properties are liable to be sold for,  pay- ment  of  such debts as have to be discharged by  the  whole family,  ,only  those  properties  would  be  available  for partition  in the pending suit which are left  after  taking away  the  properties  sold  for  meeting  the  pre-existing

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liabilities  of the joint family.  In the case of  the  sale for discharging dues under the Land Improvement Loans Act it was also contended that they obtained priority .,over  other claims,  and, for this additional reason, fell outside,  the scope of the principle of lis pendens. The   defendant-respondent   Munisami  and   the   defendant appellant  Jayaram had both pleaded that the  properties  in suit  were acquired by Munisami with his own funds  obtained by separate business in partnership with a stranger and that Ayyaswami, plaintiff, had no share in these properties.  The plaintiff respondent’s case was that although the properties were  joint,  the  liabilities  sought  to  be  created  and alienations made by Munisami were fraudulent and not for any legal necessity, and, therefore, not binding on the  family. ’ The  Trial  Court  had found that the  properties  given  in Schedule  ’B’  were  joint family properties  of  which  the defendant  respondent Munisami was the karta in  possession. This  finding was affirmed by the first Appellate Court  and was  not touched in the High Court.  It did not follow  from this finding that all dealings of Munisami with joint family properties, on the wrong assumption that he was entitled  to alienate them as owner and not as karta, would automatically become  binding  on  the  joint family.   A  karta  is  only authorised to make alienations on behalf of the whole family where  these  are supported by legal necessity.  It  was  no party’s  case that the alienations were made on  behalf  of, and, therefore, were legally binding on the joint family  of which plaintiff-respondent Ayyaswami was a member., The  Trial  Court recorded a finding on  which  the  learned Counsel for the appellant relies strongly : "There is  over- whelming documentary and oral evidence to show that the sale deed  Exhibit  B.7  and the revenue sale are  all  true  and supported by consideration and that the 12th Defendant would be entitled to them, if these sales were not affected by the rule of lis pendens ’Within the meaning of Section 52 of the Transfer of Property Act." 147 It may be mentioned here that the 12th Defendant is no other than,  the  appellant Jayaram Mudaliar,  the  son-in-law  of defendant  respondent Munisami Mudaliar, who  had  purchased the properties covered by both the impugned sales.  The plea of  the  plaintiff-respondent Ayyaswami that  the  sales  in favour of Jayaram, the 12th   defendant-appellant,      were fraudulent  and fictitious and the trial Court’s decree  for the  partition included the, properties covered by  the  two impugned  sales  evidenced by Ex.  B.7 and B.5 1,  yet,  the Commissioner  who was to divide the properties by metes  and bounds, was directed to allot to Munisami’s share, so far as possible, properties which were covered by Exhibit B.7,  and B.51.  This  implied  that the liabilities  created  by  the decrees  for whose satisfaction the sale deed  dated  7-7-58 (Exhibit B-7) was executed and the revenue sale of 16-3-1960 for  loans under an agreement were treated as  the  separate liabilities  of the defendant Munisami and not those of  the joint family. The  Trial  Court as well as the First Appellate  Court  had also   rejected the plea that the revenue sale of  16-3-1960 to  satisfy  pre-existing liabilities of  Munisami  had  any priority over the rights of the plaintiff-respondent may get in  the partition suit.  The result was that  the  partition suit was decreed subject to a direction for the allotment of the Properties covered by Exhibit B. 7 and B. 51 so that the purchaser may retain these properties if they  were allotted to Munisami.

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The High Court of Madras had described the sale of  7-7-1958 as  a "voluntary alienation", and, thereby, placed it  on  a footing different from an involuntary sale in execution of a decree in a mortgage suit.  The obligations incurred  before the  sale  of  7-7-1958, by reason of  the  decrees  in  the mortgaged  suits, were not on this view,  liabilities  which could  be  equated  with  either  transfers  prior  to   the institution of the partition suit or with sales in execution of  mortgage decrees which are involuntary.  So far  as  the revenue  sale was concerned, the High Court,  after  setting out the terms of Section 7 of the Land Improvement Loans Act 19  of-  1883,  held  that only that land  sold  was  to  be excluded  from the purview of the principle of  lis  pendens for  the  improvement of which some loan  was  taken.   This meant  that  only  that part of the loan was  treated  as  a liability  of the joint family as could be said to be  taken for the joint land.  It, therefore, modified the decrees  of the Courts below by giving a direction that further evidence should  be taken before passing a final decree to show  what land could be thus excluded from partition. The plaintiff-appellant has relied upon certain  authorities laying  down that the doctrine of lis pendens is not  to  be extended to cover involuntary sales in execution of a decree in  a  mortgage suit where the mortgage was,  prior  to  the institution of the suit in which 148 the plea of lis pendens is taken, because the rights of  the purchaser in execution of a mortgage decree date back to the mortgage  itself.   They  are:  Chinnaswami  Paddayachi   v. Darmalinga Paddyachi(1) Gulam Rasool Sahib v. Hamida  Bibi(2 )  , Baldeo Das Bajoria & Ors. v. Sarojini Dasi  &  Ors.,(3) Har  Prashad Lal v. Dalmardan Singh(4).  Reliance  was  also placed  on the principle laid down in Sityam Lal &  Anr.  v. Sohan  Lal & Ors.,(5) to contend that, since Section  52  of the Transfer of Property Act does not protect transferors, a transfer on behalf of the whole joint Hindu family would  be outside  the purview of the principle in a  partition  suit. The  contention  advanced  on  the  strength  of  the   last mentioned  case erroneously assumes that the impugned  sales were on behalf of the joint family. Learned Counsel for the plaintiff-respondent has, in  reply, drawn  our  attention  to  the  following  observations   of Sulaiman,  Ag. C.J., expressing the majority opinion in  Ram Sanehi Lal & Anr. v. Janki Prasad & Ors.(6) (FB) :               ".  . . . the language of S. 52 has been  held               to be applicable not only to private transfers               but  also to Court sales held in execution  of               decrees.   S.  2  (d)  does  not  make  S.  52               inapplicable  to  Ch.  4,  which  deals   with               mortgages.   This is now well-settled  :  vide               Radhama’dhub Holdar v. Manohar Mukerji (A) and               Moti  Lal  v.  Kharrabuldin  (B)  followed  in               numerous  cases  out of which mention  may  be               made of Sukhadeo Prasad               V.    Jamna (C) ".               (A)   (1888) 15 Cal. 756=15 I.A. 97               (B)   (1898) 25 Cal. 179=24 I.A. 170.               (C)   (1901) 23 All. 60=(1900) A.W.N. 199. But,  as we have no actual sale in execution of  a  mortgage decree,  this  question need not be decided  here.   Another decision to which our attention was drawn was : Maulabax  v. Sardarmal & Anr.  (7) . The suggestion made on behalf of the appellant, that attach- ment  of some schedule ’B’ property before judgment  in  the

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purchaser’s mortgage suit could remove it from the ambit  of lis pendens, is quit,-, unacceptable.  A contention of  this kind was, repelled, in K. N. Lal v. Ganeshi Ram, (8) by this Court as clearly of no avail against the embargo imposed  by Section 52 of the Transfer of Property Act. (1)  AIR 1932 Madras 566. (3)  AIR 1929 Calcutta 697. (5)  AIR 1928 All. 3. (7)  AIR 1952 Nag. 341, (2)  AIR 1950 Madras 189. (4)  ILR 32 Calcutta 891. (6)  AIR 1931 All.  P. 466 @ 480. (8)  [1970] 2 S.C.R. 204 at 21 149 The  High  Court had rightly distinguished  cases  cited  on behalf of the appellant before it by holding that  exemption from the scope of As pendens cannot be extended to voluntary sales in any case.  Obviously, its view was that, even where a  voluntary  sale  takes  place in  order  to  satisfy  the decretal  amount  in a mortgage suit, the result of  such  a sale was not the same as that of an involuntary sale in  the course  of  execution  proceedings where  land  is  sold  to satisfy  the  decree  on the strength of  a  mortgage  which creates  an  interest in the property mortgaged.   The  High Court had observed that, as regards the satisfaction of  the mortgage  decree  in  his  favour, which  was  part  of  the consideration  for  the  sale  of  7-7-1958,  the  appellant purchaser decree holder could get the benefit of Section  14 Limitation  Act and still execute his decree if it  remained unsatisfied due to failure of consideration. An  examination of the sale deed of 7-7-1958 discloses  that it  is  not  confined to the satisfaction  of  the  decretal amounts.   Other items are also found in it.  The sale  deed does  not purport to be on behalf of the Hindu joint  family of which Ayyaswami the plaintiff and Munisami Defendant  No. 1  could  be said to be members.  It no doubt  mentions  the sons  of  Munisami Mudaliar but  not  Ayyaswami,  plaintiff, among  the sellers.  At most, it could be a sale binding  on the shares of the sellers.  As already indicated,  Munisami, Defendant-Respondent,   as   well  as   Jayaram   Defendant- Appellant,  having  denied that the, properties  in  dispute were  joint, could not take up the position that  the  sales were binding on the whole family.  Therefore, we are  unable to  hold that the assumption of the Madras High  Court  that the voluntary sale could not bind the whole family, of which Munisami was the karta, was incorrect. Learned Counsel for the appellant had also relied on  Bishan Singh  v. Khazan Singh.(1) That was a case in which,  before the deposit of money by the pre-emptors in a suit to enforce their rights to pre-emption, the vendee had sold his  rights to the appellant who had an equal right of pre-emption.   It was  held  there  that the claim for  pre-emption  could  be defeated by such a device which fell outside the purview  of the  principle of lis pendens.  We think that this  decision turns  Upon its own facts and on the nature of the right  of pre-emption which, as was observed there, is a weak  right. This  Court had held that this weak right could be  defeated by  a  sale  which a vendee is compelled  to  make  for  the purpose  of defeating the ’night, provided  the  purchaser’s superior  or equal right to Pre-emption had not been  barred by  limitation.  On the question considered there. the  view of  the  East Punjab High Court in Wazir Ali Khan  v.  Zahir Ahmad  Khan(2) was preferred ,to the view of  the  Allahabad High Court in Kundan Lal v. Amar (1) [1959] S.C.R. 878.

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(2)  A.T.R. 1949 East Punj. 193. 150 Singh.(1) The observations made by this Court with regard to the doctrine of lis pendens when a plaintiff is enforcing  a right of preemption must, we think, be confined to cases  of sales  which could defeat preemptors claims.  It has  to  be remembered that a technical rule of the law of preemption is that the preemptor, to succeed in his suit, must continue to possess the right to preempt until the decree for possession is passed in his favour. As  regards the revenue sale of 16-3-1960 (Exhibit 0.51)  we find  that  the, sale certificate is even  less  informative than    the   voluntary   sale   deed   considered    above. Nevertheless,  the view taken by: the Madras High Court  was that  any land for to improvement of which loan is shown  to have been taken by Munisami Mudaliar would be excluded  from the purview of the doctrine of lis pendens.  It is, however, urged that the High Court had given effect to clause, (c) of Section 7 of the Land improvement Loans Act of 1883, but had overlooked clause (a). 1 Here, the relevant part of  Section 7,  sub-s.  (1) of this Apt may be, set out.   It  reads  as follows               "7.  Recovery  of loans.-(1) Subject  to  such               rules  as  may be made under Section  10,  all               loans granted under this Act, all interest (if               any)  chargeable thereon, and ’Costs (if  any)               incurred  in making the same shall, when  they               become  be’ recoverable by the,  Collector  in               all or any of the following modes, name-               (a)   from   the  borrower-as  if  they   were               arrears of land revenue due by him;               (b)   from his surety (if any) as if they were               arrears of land revenue due by him;,               (c)   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;               (d)   out  of  the property comprised  in  the               collateral security (if any)-according to  the               procedure for the realization of land  revenue               by  the sale of immovable property other  than               the land on which that revenue is due :               Provided that no proceeding in respect of  any               land   under  clause  (c)  shall  affect   any               interest in that land which existed before the               date  of  the order granting the  loan,  other               than  the  interest of the  borrower,  and  of               mortgages  of, or persons having  charges  on,               that interest               (1)   A.I.R. 1927 All. 664. 151 and  where  the loan  is’ granted under Section 4  with  the consent of another person, the interest of that person,  and of  mortgagees  of,  or  persons  having  charges  on,  that interest." Reliance  was also placed on Sec. 42 of the Madras  Revenue- Recovery Act of 1864 which reads as follows:               "All  lands  brought: to sale  on  account  of               arrears  of revenue shall be sold free of  all               incumbrances, and if any balance shall  remain               after  liquidating the arrears  with  interest               and  the expences of attachment and  sale  and               other costs due in respect to such arrears, it               shall  be  paid over to the  defaulter  unless               such payment be’ prohibited by the  injunction

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             of a Court of competent jurisdiction." It  will be seen that the assumption that the dues could  be realised as arrears of land revenue would only apply to  the interest  of  the borrower so far as clause (7) (1)  (a)  ls concerned.  The proviso enacts that even recoveries  falling under  See.  7 ( 1 ) (c) do not affect prior  interests  of, persons  other  than  the borrower or  of  the  party  which consents  to  certain  loans.  In the case  before  us,  the borrower  had  himself taken up the case that the  loan  was taken  by him individually for the purpose of purchasing  a pumping  set installed on the land.  It did not,  therefore, follow  that  this liability was incurred on behalf  of  the joint  family  unless it amounted to an unprovement  of  the joint land.  Every transaction of Munisami or in respect  of joint property in his possession could not affect rights  of other  members.  It was for this reason that Section  7  (1) (a)  was not specifically applied by the High Court,.   But, at  the  same time, the direction that the  properties  sold should,  so far as possible, be allotted to  Munisami  meant that the purchaser could enforce his rights to them if  they came to the share of Munisami. The question of paramount claims or rights of the Government for  the  realisation  of its taxes or  of  dues  which  are equated  with  taxes  was  also  raised  on  behalf  of  the appellant on the strength of Builders Supply Corporation  v. The  Union  of  India(1) In that case,  the  origin  of  the paramount  right  of the State to realise taxes  due,  which could  obtain priority over other claims, was traced to  the prerogatives  of the British crown in India.  Apart  of  the fact that there is no claim by, the State before us, we  may observe that, where a statutory provision is relied upon for recovery of dues, the effect of it must be confined to  what the statute en-acts.  Even under the English law, the  terms of  the statute displace any claim based on prerogatives  of the Crown (1)  [1965] 2 S.C.R. 289.      152 vide Attorney Generalv. De Keyser’s Royal hotel Ltd. (1) And, in no case, can the,claim   whatever  its   basis, justify. a sale of that property which doesnot  belong  to the  person  against  whom  the  claim  exists.  As  already observed   a   claim  under  Section7(1)(a)  of   the   Land Improvement  Loans Act of 1883 could only be made  from  the borrower.   This  meat  that,  unless  it  was  proved  that Munisami, in taking a loan under the Act, was acting as the, karta of the, joint Hindu family of which Ayyaswamy was  a member,  recovery  of  arrears  could  only  be  made   from Munisami’s share in the, 1and.  That this could be done was, in our opinion implied in the direction that the  properties sold should, so far as possible, be allotted to the share of Munisami. As  some  argument  has been advanced on  the  supposed  in- applicability  of the general doctrine of lis pendem to  the impugned  sales,  the nature, the basis, and the,  scope  of this doctrine may be ,considered here. It  has been pointed out, in Bennet "On lis pendens",  that, even before Sir Francis Bacon framed his ordinances in  1816 "’for the better and more regular administration of  justice in the chancery, to be daily observed" stating the  doctrine of  lis  pendens in the 12th ordinance,  the  doctrine  was already  recognized  and  enforced  by  Common  law  Courts. Bacon’s ordinance on the ,Subject said :               "No  decree bindeth any that commeth  in  bona               fide, by conveyance from the, defendant before               the  bill  exhibited, and is  made  no  party,

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             neither by bill, nor the order; but, where  he               comes in pendente life, and, while the suit is               in full prosecution. and without any colour of               allowance  or  privity  of  the  court,  there               regularly  the decree bindeth; but,  if  there               were  any intermissions of suit, or the  court               made acquainted with the conveyance, the court               is  to  give  order upon  the  special  matter               according to justice." The  doctrine,  however, as would be evident  from  Bennet’s work mentioned  above, is derived from the  rules  of  jus gentium which became embodied in the Roman Law where we find the  maxim:  "Rem  dequa controversia  prohibemur  in  acrum dedicate" (a thing concerning which there is a  controversy is prohibited, during the suit from being alienated).  Bell, in his commentaries on the lows of Scotland(1) said that it was grounded on the,maxim: "Pendente lite nibil innovandum". He observed               "It is a general rule which seems to have been               recognized   in   all   regular   systems   of               jurisprudence, that during the pendence of  an               action., of which the object is to               (1) [1920] AC 508.               (2) 2 Bell’s Com. on laws of Scotland, p. 144.               153               vest the property or obtain the possession  of               real estate, a purchaser shall be held to take               that estate as it stands in the person of  the               seller,  and to be bound by the  claims  which               shall ultimately be pronounced." In the Corpus Juris Secundum (Vol.  LIV-P. 570), we find the following definition :               "Lis  pendens literally means a pending  suit;               and  the  doctrine  of lis  pendens  has  been               defined as the jurisdiction, power, or control               which a court acquires over property  involved               in  suit,  pending  the  continuance  of   the               action, and until final judgment therein." Expositions  of the doctrine indicate that the need  for  it arises  from the very nature of the jurisdiction  of  Courts and  their control over the subject-matter of litigation  so that parties litigating before it may not remove any part of the  subject-matter outside the power of the court  to  deal with it and thus make the proceedings infructuous. It  is useful to remember this background of Section  52  of our Transfer of Property Act which lays down :               "During the pendency in any Court...... of any               suit or proceeding which is not collusive  and               in  which any right to immovable  property  is               directly  and  specifically in  question,  the               property  cannot be transferred  or  otherwise               dealt  with  by  any  party  to  the  suit  or               proceeding  so as to affect the rights of  any               other party thereto under any decree or  order               which  may be made there,in, except under  the               authority of the Court and on such terms as it               may impose." It  is evident that the doctrine, as stated in  Section  52, applies  not merely to actual transfers of rights which  are subject-matter  of litigation but to other dealings with  it "by any party to the suit or proceeding, so as to affect the right of any other party thereto".  Hence, it could be urged that  where  it  is not a party to  the  litigation  but  an outside  agency, such as the tax Collecting  authorities  of the  Government, which proceeds against the  subject--matter

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of litigation, without anything done by a litigating  party, the  resulting  transaction will not be hit by  Section  52. Again,  where all the parties which could be affected  by  a pending litigation are, themselves parties to a transfer  or dealings with property in such a way that they cannot resile from  or  disown the transaction impugned before  the  Court dealing  with  the litigation, the Court may  bind  them  to their own acts.  All these are matters which the Court could have properly considered.  The purpose of Section 52 of the Transfer  of  Property  Act is not to defeat  any  just  and equitable claim but only to subject them to the authority of the  Court  which  is dealing with the  property  to,  which claims are put forward. 11-1208S ipCT/72 154 In  the case before US, the Courts had given  directions  to safeguard  such just and equitable claims as  the  purchaser appellant  may  have  obtained without  trespassing  on  the rights  of  the plaintiff-respondent in the  joint  Property involved in the partition suit before the Court.  Hence, the doctrine of lis pendens was correctly applied. For  the  reasons  given above, there is no  force  in  this appeal which is dismissed with costs. Sikri, C. J.-I have had the advantage of perusing the  judg- ment prepared by my brother, Beg J., but as I arrive at  the same conclusion by a slightly different route I am writing a separate  judgment.   I may give a few facts  to,  make  the judgment self sufficient.  The following pedigree may enable us to appreciate the facts           Muniappa Mudaliar Doraiswamy Mudaliar ChidambaraGovindaswamy Muda- (died on 4-9-1937)  Mudaliarliar (died 1940)     wife      6th Def. (died pendingAnnammal 10th Def.      suit) Muniswami           Ayyaswami Def. 7    Def8 Def. 9 Mudaliar (1st Def.  Mudaliar died pending suit)  (Plaintiff) Def. /  2       Def.  3       Def.  4       Def. /  5 12th  Def. (Jayaram Mudaliar)-alinee of Def.  No. 1. On  June  23,  1956 Ayyaswami  (Plaintiff)  filed  a  pauper petition No. 137/1958.  In the plaint he claimed a partition of B Schedule properties which, according to him belonged to Joint Hindu Family consisting of himself and the defendants. While  this  suit  was pending,  defendant  No.  1-Muniswami Mudaliar-and four of his sons executed a sale deed (Ex.  B7) in respect of some lands in Ozhaiyathur village in favour of Jayaram   Mudaliar  on  July  7,  1958.   These   properties comprised  items  5, 15 to 19, 24 and 28 of Schedule  B.  On July  15, 1960 a certificate of sale (Ex.  B51)  was  issued stating  that  Jayaram  Mudaliar  had  purchased  at  public auction  immoveable property (described in the  certificate) for  Rs. 6,500/-.  The property is stated to have been  sold for  "  pumpset arrears under Hire Purchase  System  due  by Muniswami Mudaliar".  Exhibit B 51 covered items 4, 18,  20, 23 to 27 and  155 31.It  is common ground that these properties were  included in the B Schedule mentioned in the plaint. It is stated in the judgment of the Trial Court that Jayaram Mudaliar got himself impleaded as 12th defendant.  He  filed a  written statement inter alia alleging that the  Plaint  B Schedule properties were the sole and absolute properties of the  1st  defendant.  Additional issues were framed  in  the suit. It appears that by virtue of order dated September 18, 1961,

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the  plaint was amended and paras 24(a) and 24(b)  inserted. They read :               "24(a) The 12th defendant is a close agnate of               the  son-in-law  of  the  1st  defendant.   He               executed the sham and nominal sale deed  dated               7-7-1958  in favour of the 12th  defendant  to               defeat  the plaintiff’s rights and to  secrete               the properties.  It was not acted upon.  It is               the  1st  defendant that continues  to  be  in               possession even now.  The alleged sale deed is               not supported by consideration.  The  mortgage               itself was brought about to defeat any rights.               In  any event on the date of the alleged  sale               deed  dated 7-7-1958 the mortgage decree  debt               was, not subsisting.  The plaint was filed  in               forma pauperis as O.P. 137 of 1958 on the file               of  this Hon’ble Court on 23-6-1958.  Thus  in               any event the sale is, hit by the rule of  lis               pendens  and  the  sale  deed  dated  7-7-1958               cannot  and does not confer any rights on  the               12th defendant.               24(b)  The  revenue  sale  is  brought   about               collusively  and fraudulently.  There  was  no               publication.   The  12th defendant  never  got               into   possession   of  any   property.    The               possession still continues to be with the  1st               defendant on behalf of the joint family.   The               sale  is also hit by the rule of lis  pendens.               It also does not and cannot confer any  rights               on the 12th defendant." Following additional issues were raised out of the pleadings of the 12th defendant :               (1)   Whether the plaint B Schedule properties               are joint family properties ?               (2)   Whether  the  plaintiff is  entitled  to               question  the,  alienations in favour  of  the               12th defendant ?               (3)   Whether the sale deed dated 7-7-1958  by               the  1st  defendant  in  favour  of  the  12th               defendant  true,  valid  and  binding  on  the               plaintiff and is affected by LIS PENDENS ?               156               (4)   Whether   the   Revenue  sale   by   the               Collector  dated  16-3-1960 is  liable  to  be               questioned by the plaintiff ?               (5)   Is  the  suit  without  impleading   the               Government  liable  to be  questioned  by  the               plaintiff ?               (6)   Is  the  sale  of pump set  by  the  1st               defendant  to the 12th defendant  true,  valid               and binding on the plaintiff ?               (7)   Whether the plaintiff and other  members               became  divided from the 1st  defendant  after               1939 ?               (8)   To  what equities, if any, is  the  12th               defendant  entitled ?               (9)   Is    the   plaintiff   estopped    from               questioning  the alienations and claiming  any               right in the B Schedule properties ?               We  are  only concerned with issues  3  and  4               above. The  Trial Court held that the sale deed, Ex.  B7,  and  the revenue  sale "are all true and supported  by  consideration and  that the 12th defendant would be entitled to  them,  if these  sales were not affected by the rule of ’lis  pendens’

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within  the  meaning of s. 52 of the  Transfer  of  Property Act".   Regarding  lis pendens he held  that  the  purchases under both Ex.  B7 and Ex. B51 were affected by the rule  of lis  pendens.  The Trial Court passed a  preliminary  decree for partition of B Schedule properties (items 2 to 31)  into six  equal  shares.  It protected the interest of  the  12th defendant   by  stating  that  "as  far  as   possible   the Commissioner  appointed  in  the suit for  division  of  the properties  will allot to the plaintiff’s share such of  the properties which are not covered by Exs.  B 7 and B 51". The  District Judge confirmed the decree.  Before  the  High Court,  in  appeal  by  defendant No.  12,  the  only  point considered  was  that of lis pendens.  The High  Court  held that Ex.  B7 was a case of voluntary alienation and was  hit by  lis  pendens,  as the sale was not  in  execution  of  a mortgage decree.  Regarding Ex.  B51 the High Court, relying on Ponnuswami v. Obul Reddy(1) held that Ex.  B51 would  not be affected by lis pendens, as the loans were granted  under the  Land Improvement Loam Act to the extent that the  loans were taken for the improvement of the properties.  As it had not  been considered whether all the properties  which  were sold in revenue sale and conveyed under Ex.  B51 were, lands for  the  improvement of which loans were  taken,  the  High Court directed (1)  A.I.R. 1939 Mad. 256. 157               "In  the final decree proceedings,  the  trial               court   were   to  consider  what   were   the               properties  for the improvement of  which  the               loans  under  the Land Improvement  Loans  Act               were taken by the first defendant, in  respect               of those properties alone the doctrine of  lis               pendens  will not apply.  In respect of  other               properties, the doctrine of lis, pendens  will               apply.  The trial court take evidence for  the               purpose of deciding the properties in  respect               of which the loans under the Land  Improvement               Loans Act were taken." With this modification the High Court dismissed the appeal. Defendant  No.  12  applied  for a  certified  copy  of  the Judgment  and Decree on July 22, 1968, and these  were  made ready  on August 9, 1968 and delivered on August  12,  1968. Defendant No. 12 moved the High Court by letter dated August 22,  1968  "requesting the posting of the appeal  for  being mentioned  for the purpose of the issue of  the  Certificate for  leave to appeal under the Letter Patent".  The  learned Judge  who heard the appeal by his order dated September  6, 1968 refused the leave on the ground that the leave was  not asked  for immediately on delivery of judgment and  that  it could not be asked for afterwards. Rule 28 of Order 4 of the Rules of the High Court of  Madras Appellate  Side,  1965 under which the leave asked  for  was refused reads               "28.  When  an  appeal against  an  appellate,               decree or order has been heard and disposed of               by  a  single  judge, any  application  for  a               certificate  that  the case is a fit  one  for               further appeal under clause 15 of the  Letters               Patent  shall be made orally  and  immediately               after the judgment has been delivered." This Court granted special leave. At  the outset, Mr. Chagla raised the preliminary  objection that  the appeal was incompetent as Defendant No. 12  failed to  ask  for certificate orally and  immediately  after  the judgment  was delivered.  The learned counsel for  Defendant

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No.  12 urged that Rule 28 of Order 4 was ultra vires.   Two points thus arise out of the contentions of the parties : (1)  Is Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side ultra vires ? (2)  Are  the Sales by Ex.  B7 and Ex.  B51 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 158 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 37 ,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 el. 27 of the Letters Patent which  is in  similar terms as el. 37 mentioned above, the High  Court of  Judicature  at  Lahore  had the power  to  make  a  rule prescribing  the period 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  me  that  the  High  Court  can  equally  frame  a  rule regulating,  the ’time at which and the manner in which  the application  for  a certificate shall be made.  Rule  28  of Order 4 does not take away any right conferred by el. 15  of the  Letters  Patent.  It only regulates the manner  of  the exercise  of that right.  It was said that the  rule  unduly restricts  the right of the litigant to peruse the  judgment and make, up his mind whether to appeal or not.  But if  the declaration is made immediately by the Judge that the  case is  fit  one  for appeal there is  nothing  to  prevent  the 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 Court  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 application 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  considered  the 7scope 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.  B51 stands in  a different position.  It was held in Samarendra Nath Sinha  & Anr.  v.  Krishna  Kumar Nag(1) that the  principle  of  lis pendens  applies even to involuntary alienations 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 right, title  and               interest from or               (1) [1962]3 S.C.R. 313.               (2) [1967] 2S.C.R. 18,28.               159               through   him.    This   principle   is   well

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             illustrated    in   Radhamabhub   Holder    v.               Monohar(1) where the facts were almost similar               to those in the instant case.  It is true that               S.  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(2) and  Motilal               v. Karrabuldin (3).] These  observations were referred to with approval  by  this Court  in Kedar Nath Lal v. Ganesh Ram(1). If the  principle of lis pendens applies to court auctions there is no  reason why it should not apply to revenue sales.  But the effect of the application of the principle’ may vary according to  the nature  of  the provisions under which the revenue  sale  is held.   The  principle of lis pendens does not  affect  pre- existing 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.   In  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 following modes, namely:               (a)   from  the  borrower  as  if  they   were               arrears of land revenue due by him;               (b)............               (c)   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 that land which  existed  before               the date of the order granting the loan, other               than  the  interest of the  borrower,  and  of               mortgagees  of, or persons having charges  on,               that  interest, and where the loan is  granted               under  Section 4 with the consent  of  another               persons,  the interest of that person, and  of               mortgagees  of, or persons having charges  on,               that interest." Section 42 of the Madras Revenue Recovery Act provides  that all  lands brought to sale on account of arrears of  revenue shall  be sold free of all encumbrances.  The  liability  of the land to be sold (1)15 I.A. 97. (2) 12 I. A. 171. (3) 24 I.A. 170. (4) [1970] 2 S.C.R. 204. 160 under s. 7 (c) of the Act was a pre-existing charge and that subsisted  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 State, 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 prejudiced  by the, principle of lis pendens.  Therefore, the direction  of the  High Court 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 properties. In the result the appeal fails and is dismissed. G C.               Appeal dismissed.

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