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PETITIONER: SAMARENDRA NATH SINHA & ANR.

       Vs.

RESPONDENT: KRISHNA KUMAR NAG

DATE OF JUDGMENT: 01/11/1966

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. WANCHOO, K.N. MITTER, G.K.

CITATION:  1967 AIR 1440            1967 SCR  (2)  18  CITATOR INFO :  R          1970 SC1717  (17)  R          1973 SC 569  (15)

ACT: Code of Civil Procedure (Act 5 of 1908), ss. 151,  152-Court mistakenly  passing preliminary decree for sale in suit  for foreclosure-Subsequently  correcting  mistake  and   passing final decree for foreclosure-Power to correct such error. Transfer  of  Property Act (4 of 1882), s. 52-  Purchase  of mortgaged  property pendente life-Applicability of  doctrine of lis pendens.

HEADNOTE: A  piece of land with some constructions on it  situated  in district  Howrah  was mortgaged by  conditional  sale.   The mortgage deed provided that in case of default in payment of the  mortgage amount by the due date the sale  would  become absolute.   Subsequently the mortgagor sold his interest  to H.  As the mortgage amount was not paid by the due date  the mortgagee  filed a suit for foreclosure which  was  decreed. The trial court passed a preliminary decree ordering that in case the mortgage amount was not paid within six months  the plaintiff  would be at liberty to apply for a  final  decree for sale.  H filed an appeal before the High Court which was dismissed.   The final decree framed by the trial  Court  in pursuance  of the High Court’s orders was  for  foreclosure. While  the  above  appeal  was  pending  the  respondent  in execution  of  a  money  decree  against  H  purchased   the aforesaid  mortgaged  properties and  was  given  possession thereof.  However after the final decree passed by the Court in  the mortgage suit the mortgagee was given possession  of the   properties.    The  respondent  thereupon   filed   an application under O. 21 r. 100 for restoration of possession to  him.  This application was rejected by the trial  court. The respondent then filed an appeal against the final decree in the High Court.  His appeal was entertained and the  High Court set aside the trial court’s decree on the ground  that there was lack of conformity between the preliminary  decree which  was  for  sale and the final  decree  which  was  for foreclosure.  The matter was remanded to the trial court and leave  was  given to the respondent to  participate  in  the

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matter.   The appellants who in the meanwhile had  purchased the mortgagee’s interest, appealed.. with certificate  under Art. 133(a) and (b) to this Court. HELD : (i) The High Court had held that the respondent had a locus  standi in the matter and had directed that he was  to be allowed in the remand proceedings to plead that the final decree should be one for sale thus reopening the question of redemption  of the mortgage which’ had been extinguished  by the final decree.  The High Court’s order as regards  these’ matters  was certainly a final order and therefore the  pro- priety  of  the certificate under Art. 133  granted  to  the appellants could not be questioned. [24 A-C] (ii)There is ’an inherent power in the -court which  passes the  judgment  to  correct a clerical mistake  or  an  error arising from an accidental slip or omission and to vary  its judgment so as to give effect to its meaning and  intention. On the facts of the present case there could be little doubt that the court had no occasion to pass a preliminary  decree for  sale  and  that it was through an  accidental  slip  or inadvertence that in 19 the  penultimate  part of its judgment the  court  used  the phraseology proper in a mortgage decree for sale.  Once this error  had  crept  in the judgment it was  repeated  in  the preliminary decree.  This being the position the trial court had  the power under s. 151 and s. 152 of the Code of  Civil procedure  to correct its own error which had crept  in  the judgment  and  the preliminary decree and to pass  a  proper final decree for foreclosure as intended by it. [24 E, 25 E, H] (iii)On the facts of the case it could not be said that the decree represented a wrong decision of the Court. [26 D- E] (iv)The   principle   of  lis  pendens  applies   even   to involuntary  alienations like court sales.   The  respondent having  purchased  the mortgaged property while  the  appeal against  the preliminary decree in respect of  the  property was  pending in the High Court, the doctrine of lis  pendens must apply to his purchase and he was therefore bound by the result of the suit. [28 B-D] Case law considered.

JUDGMENT: CIVIL APPELLATE JURISDICTION.  Civil Appeal No. 707 of 1964. Appeal from the judgment and decree dated November 12, 1961, of  the Calcutta High Court in Appeal from  Original  decree No. 285 of 1956. Niren  De,  Addl.   Solicitor-General, N.  R.  Basu  and  E. Udayaratnam, for the appellants. P.K. Chatterjee, B. d. Mitra and P. K. Bose, for the res- pondent. The Judgment of the Court was delivered by Shelat,  J. One Sambhu Charan Das and Sannyashi  Charan  Das owned  2 bighas and 18 cottahs of land with  a  construction standing thereon, situated in Salkiah, District Howrah.   By a  deed of mortgage by conditional sale dated June  2,  1933 the  said  owners  mortgaged the  said  property  to  secure repayment  of  Rs. 2,750 advanced to them  by  Panchu  Gopal Srimani,  then a minor through his mother, Prabhavati  Dassi as  his  certificated guardian.  The  said  mortgage,  inter alia, provided that if the mortgage amount was not repaid by the  due  date i.e., April 14, 1935 the  mortgage  would  be considered  as  a deed of absolute sale  and  the  mortgagee

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would  be entitled to take possession of the  property.   On June 18, 1934 the mortgagors assigned their right, title and interest  in the said property to one Satchindananda  Hazra. As  the said mortgagors or the said Hazra failed to pay  the said mortgage amount on the due date, the mortgagee filed  a suit  on  July  17,  1945  for  enforcement  of  his  rights impleading  the  two  mortgagors  and  the  said  Hazra   as defendants.   In  that  plaint the mortgagee  prayed  for  a decree  for Rs. 5,426/10/6, being the amount then due  under the  said mortgage and for fixing the time for.  payment  of the 20 said  amount.   The plaint also contained a prayer  that  on failure to pay the decreetal amount within the time fixed by the court the right of the defendants to redeem the mortgage may be annulled and a decree may be passed giving possession of  the mortgaged property." The mortgagors filed a  written statement claiming that they should be permitted to pay  the mortgage  amount  by instalments as provided by  the  Bengal Money  Lenders  Act.  The said Hazra also  filed  a  written statement alleging that he was a bona fide purchaser without notice  of  the said mortgage.  The two mortgagors  did  not contest  the  suit and it was only Hazra  who  contested  it contending also that as the loan under the said mortgage was advanced  by the guardian of the said Panchu, then a  minor, without  obtaining sanction of the District Judge, the  said mortgage was null and void. The Trial Court rejected these contentions and passed a pre- liminary  decree  on December 23, 1946.   The  said  decree, inter  alia, provided that the mortgage amount due  was  Rs. 5,426/10/6  and that if the said amount together with  costs of the suit was not paid by the defendants within six months from  the  date  of the decree the  plaintiff  would  be  at liberty to apply for a final decree.  Though the suit was  a foreclosure suit the preliminary decree passed by the  Trial Court  was  one  under O. 34 r. 4(1) of the  Code  of  Civil Procedure inasmuch as it provided that in default of payment as  aforesaid the plaintiff would be at liberty to apply  to the  court for a final decree for sale and that if the  sale proceeds on such sale were not sufficient for payment of the decreetal amount the plaintiff would be at liberty to  apply for  a  personal  decree  against  the  defendants  for  the balance.  Against the said preliminary decree the said Hazra filed  an appeal in the High Court at Calcutta  raising  two contentions, (1) that the said mortgage was void on  account of sanction not having been obtained by the guardian of  the mortgagee  before  advancing the said loan and (2)  that  he should   be  permitted  to  pay  the  decreetal  amount   by instalments.  The High Court negatived these contentions and by  its judgment and decree dated March 22,  1951  dismissed the  said  appeal and the suit was sent back  to  the  Trial Court for passing a final decree. While the said appeal was pending the respondent obtained  a money decree against the said Hazra and commenced  execution proceedings  against him.  An attachment was levied  on  the said mortgaged property and thereafter on June 23, 1950  the right,  title and interest of the said Hazra was put up  for sale.   The  respondent was the auction  purchaser  and  the court  confirmed  the said sale by an order  dated  February l5,1951.  The said auction sale was in respectof 1 bigha and  2 cottahs out of the said mortgagee  property.According to  the  respondent  he was given  possession  of  the  said property on May 3, 1951. 21 On March 1, 1954, the said mortgagee, Panchu Gopal  Srimani,

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applied  for a final decree in the said suit.  Pending  this application,  he  assigned his right in the said  decree  in favour  of the appellants on May 31, 1954.  On July 1,  1954 the  appellants  applied  to  the  Trial  Court  for   being substituted in place of the said Panchu Shrimani.  The Trial Court directed notices to be issued on the defendants,  that is,  the  said two mortgagors and the said  Hazra  and  they having  raised  no  objection the court by  an  order  dated January 5, 1955 ordered substitution and then passed a final decree.   The  said  decree, after reciting  that  the  said decretal  amount was not paid within the time  appointed  by the  defendants or any other person entitled to  redeem  the said mortgage, provided as follows:-               "And  it is hereby ordered and  declared  that               the defendant and all persons claiming through               or  under  him  are  absolutely  debarred  and               foreclosed   of   and  from  all   rights   of               -redemption  of  and in the  property  in  the               aforesaid  preliminary decree  mentioned  ....               and  that the defendant shall deliver  to  the               plaintiff quiet and peaceful possession of the               said mortgaged property." On  April 19, 1955 the appellants applied for  and  obtained possession of the said mortgaged property.  According to the respondent,  however he learnt about the possession  of  the said  mortgaged  property  having  been  delivered  to   the appellants for the first time on May 25, 1955 and  thereupon filed  an  application under O. 21 r. 100 of  the  Code  for restoration of possession to him.  On September 27, 1955 the Trial Court rejected that application.  The respondent  then filed on January 3, 1956 a Revision Application against  the said  dismissal.  On August 23, 1955 the respondent filed  a second application under section 151 of the Code for setting aside the said final decree.  On the same day he also  filed an  appeal  in the High Court being Appeal No. 285  of  1956 against  the  said final decree but without  impleading  the said  mortgagors or the said Hazra, who still was  partially interested in the equity of redemption in the said property. In the meantime, the Trial Court dismissed the  respondent’s application  under section 151 by its order  dated  February 14,  1956.  The High Court also by its order dated  May  12, 1961  discharged  Civil  Rule No. 2 of 1956  issued  in  the revision  application  filed by the respondent  against  the dismissal of his application under O. 21 r. 100. Appeal  No. 285 of 1956 came on for hearing on May 12,  1961 before  a Division Bench of the High Court.  The High  Court set aside the final decree observing :               "It is common case that the preliminary decree               was  for sale.  The prayer by the  respondents               was  for  a  final  decree  in  terms  of  the               preliminary decree.  This was allowed, but the               final decree as drawn up turned out to be  one               for               22               foreclosure.  It is this disconformity between               the  preliminary decree and the  final  decree               which is being challenged by the appellant."               The High Court ordered               "We  should in the result set aside the  final               mortgage  decree  and  allow  the  appeal   by               remitting  the matter back to the Court  below               to be dealt with in accordance with law.   The               appellant  is given liberty to participate  in               the matter." Against the said judgment and decree the appellants  applied

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for and obtained a certificate under Art. 133(1)(a) and (b). It is manifest that the High Court’s judgment meant that the respondent  had  sufficient interest to  maintain  the  said appeal  and participate in the proceedings before the  Trial Court  on  the  said remand  for  considering  the  question whether the said preliminary decree should be altered or not and  if  not whether the respondent had still the  right  to redeem the said mortgage, though the time for payment  fixed under the said preliminary decree had expired, that is,  six months  from December 23, 1946, long before  the  respondent became a purchaser of part of the said equity of  redemption on  February  15,  1951.   There  is  no  dispute  that  the valuation test for a certificate is satisfied in the present case.   The judgment and decree passed by the High Court  is also  not one of affirmance as the High Court set aside  the said  final decree.  There can be no dispute also  that  the question whether the appellant who was the auction-purchaser pendente  lite had the locus standi to maintain  the  appeal was finally decided and he was given liberty to  participate in the proceedings for correcting the preliminary decree and was enabled thereby to contend that he was still entitled to redeem  the  said  mortgage and  retain  possession  of  the mortgaged property.  The Trial Court was bound to allow  him to  participate  in those proceedings as  the  High  Court’s judgment  specifically directed it to deal with the case  in accordance  with  the  directions  contained  in  the   said judgment.   The judgment and decree of the High Court  thus, besides  setting aside the said final decree meant that  the respondent  had still sufficient interest entitling  him  to challenge the appellants’ claim to have a final  foreclosure decree and to. maintain that the question of redemption  was still  open  and he had the right to  redeem  the  mortgaged property. Counsel for the respondent however contended that the certi- ficate  granted by the High Court was not competent and  was liable  to  be vacated as the judgment passed  by  the  High Court was not a judgment, decree or final order inasmuch  as what the High Court had done was only to remand the case  to the  Trial Court and the Trial Court had yet to  decide  the question  whether a final decree for foreclosure  should  be passed or whether the final decree should 23 be  one for sale enabling the respondent to redeem the  said mortgage.  In support of his contention he relied on  Sardar Syedna  Tahar  Saifuddin Saheb v. State of  Bombay(1)  where this  Court  held that the certificate granted  therein  was incompetent  as  it could not be granted in  respect  of  an interlocutory  finding.  The order appealed against in  that case  was  a  decision  as to the  validity  of  the  Bombay Prevention  of  Excommunication Act, 1949  (Bombay  XLII  of 1949).   That being one of the several issues  the  decision did not dispose of the suit as the rest of the issues  still remained to be tried and it was for this reason that it  was held that the said order was not a judgment, decree or final order.   M/s.   Jethanand  &  Sons v.  The  State  of  Uttar Pradesh(2)  was again a case of remand directing  the  Trial Court  to  frame fresh issues and give  opportunity  to  the parties to produce evidence.  In fact it was an order for  a Trial  de  nova on fresh pleadings and on  all  issues  that might arise on such pleadings.  Evidently any decision given by  the High Court in the course of its order would  not  be binding  on  the  Trial Court as the case had  to  be  tried afresh  by it.  In these circumstances it was held that  the order  of remand was not ’a judgment, decree or final  order as  it  did not amount to a final decision relating  to  the

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rights of the parties in dispute. In  our opinion, these decisions cannot help Mr.  Chatterjee as  the  position  here  is not the same  as  in  those  two decisions.   The, High Court has given its judgment  and  in pursuance  thereof  passed a decree setting aside  the  said final  decree.   If  the  High  Court  had  held  that   the respondent in the circumstances of the case had no right  to maintain  his appeal, the final decree would have  become  a concluded decree and his right of redemption, if any,  would have  been totally extinguished.  It is true that  the  High Court  remitted  the  case to the Trial  Court  but  it  was obviously not an order of remand simpliciter.  The  decision of  the  High Court was not on a preliminary  issue  leaving undecided  other issues to be tried by the Trial Court.   It will be observed that the respondent was not a party to  the suit-he could not be because when the preliminary decree was passed  he  was  not  on the scene.   Though  he  became  an auction-purchaser  while the appeal against the  preliminary decree  was pending, he did not apply for being  brought  on record.  The appellants or their predecessor-in-title  would not be aware of his purchase and therefore could not implead him in the suit or in the appeal’.  The respondent filed his appeal against the said final decree and two questions arise in that appeal : (1) whether being a purchaser pendente lite he  had  locus standi to file an appeal  and  challenge  the final   decree   and  (2)  whether  the  Trial   Court   had jurisdiction  to  pass  the final decree which  was  not  in conformity with the preliminary decree. The judgment of  the High Court is unfortunately laconic and one wishes that  the learned Judges, (1) [1958] S.C.R. 1007.                        (2) [1961]  3 S.C.R. 754. 24 had  taken us a little more into confidence by  giving  some reasons  at  least.   Nonetheless, it  is  clear  that  they decided  both the questions by holding that  the  respondent had  still sufficient interest in the matter  and  therefore had  locus standi and by setting aside the final decree  and directing  the  Trial  Court to decide the  question  as  to whether  it  could correct the said  preliminary  decree  in accordance with the directions given by them they held  that the   respondent  was  entitled  to  participate  in   those proceedings  and plead that the final decree should  be  one for sale and consequently he was entitled to redeem the said mortgage.   There can be no question that the two  questions raised in the appeal before the High Court were disposed  of finally  inasmuch as the said final decree was set aside  as not  being  valid  and binding on  the  respondent  and  the question of redemption by him which was extinguished by that final  decree  was  reopened  entitling  the  respondent  to contend that he had the right to redeem and to hold the said property.  In these circumstances the preliminary  objection raised  by  Mr.  Chatterjee  cannot  be  sustained  and  the certificate must be held to be competent. On merits, two questions were raised : (1) whether the Trial Court  was competent to pass a final decree for  foreclosure though .the preliminary decree was for sale and (2)  whether the respondent had the right to contend that he was entitled to redeem the said mortgage in view of the fact that he  was the execution purchaser of part of the equity of  redemption pendente lite. Now,  it is well-settled that there is an inherent power  in the  court which passed the judgment to correct  a  clerical mistake  or  ,an error arising from an  accidental  slip  or omission  and to vary its judgment so as to give  effect  to

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its meaning and intention.  "Every court," said Bowen L.  J. in  Mellor  v.  Swira(1) "has inherent power  over  its  own records  so long as those records are within its  power  and that  it can set right any mistake in them.  An  order  even when passed and entered may be amended by the court so as to carry out its intention and express the meaning of the court when  the order was made." In Janakirama Iyer  v.  Nilakanta Iyer(2)  the decree as drawn up in the High Court  had  used the words " mesne profits" instead of "net profits".  Infact the  use  of  the words "  mesne profits" came  to  be  made probably because while narrating the facts, those words were inadvertently  used in the judgment.  This court  held  that the  use  of the words "mesne profits" in  the  context  was obviously  the  result of inadvertence in view of  the  fact that the decree of the Trial Court had specifically used the words "  net profits" and therefore the decretal order drawn up  in  the High Court through mistake  could  be  corrected under  sections 151 and 152 of the Code even after the  High Court  had granted certificate and appeals were admitted  in this court before the date of the (1)  30 Ch. 239.                                 (2)  A.I.R. 1962 S.C. 633.                              25 correction.   It is true that under O. 20 r. 3 of  the  Code once a judgment is signed by the Judge it cannot be  altered or  added  to  but  the  rule  expressly  provides  that   a correction can be made under section 152.  The Rule does not also  affect the court’s inherent power under  section  151. Under  section  152, clerical or  arithmetical  mistakes  in judgments, decrees or orders or errors arising therein  from any accidental slip or omission may at any time be corrected by  the court either on its own motion or on an  application by  any  of the parties.  It is thus  manifest  that  errors arising   from   an  accidental  slip   can   be   corrected subsequently not only in a decree drawn up by a  ministerial officer  of the court but even in a judgment pronounced  and signed by the court. As already pointed out, the mortgage in question was one  by conditional sale empowering the mortgagee to take possession of  the mortgage security if the monies due thereunder  were not  paid by the due date.  The suit filed by the  mortgagee was  also  for  a  foreclosure decree.   The  tenor  of  the judgment  of the Trial Court shows that the court  meant  to pass  such  a foreclosure decree especially  as  the  plaint contained no prayer for a decree for sale or for a  personal decree against the mortgagors or the said Hazra if the  sale proceeds were found insufficient.  The written statements of the  defendants  did not raise any  contention  against  the mortgagees’  right for a foreclosure decree,  their  defence being  only  that  they were entitled to  pay  the  mortgage amount by instalments.  There can therefore be little  doubt that the court had no occasion to pass a preliminary  decree for  sale  and  that it was through an  accidental  slip  or inadvertence  that in the penultimate part of  its  judgment the  court used the phraseology proper in a mortgage  decree for sale.  Once this error had crept in the judgment it  was repeated  in the preliminary decree and this error  was  not even  noticed  by the High Court when it  dismissed  Hazra’s appeal  and confirmed that decree.  The error was  later  on noticed  by the appellants as is seen from the order  passed by  the Trial Court dismissing the respondent’s  application under section 151 for setting aside the final decree.   That order  states that the Subordinate Judge who tried the  suit through  oversight  passed  a preliminary  decree  for  sale overlooking the fact that it was a suit for foreclosure  and

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possession,  that it was also apparent that this mistake  of the  Trial  Court  went unnoticed in the  High  Court  which confirmed the decree of the Trial Court and               "therefore,  this  court, when it  passed  the               final  decree being apprised of  the  apparent               mistake in the form of the preliminary decree,               corrected the initial mistake and did  justice               by passing a final decree for foreclosure  and               for  possession which was -the only  scope  of               this suit." This being the position the Trial Court had the power  under section  151 and section 152 to correct its own error  which had crept in the Sup. CI/66-3 26 judgment and the preliminary decree and pass a proper  final decree for foreclosure as intended by it. Mr., Chatterjee, however,, raised two contentions; (1)  that a  judgment  or decree cannot be varied  when  it  correctly represents  what the court decided though it may be  wrongly nor can the operative or substantive part of the judgment be varied  and  a  different one substituted  and  (2)  that  a judgment  or  decree cannot be varied where there  has  been intervention  of  rights  of  third  parties  based  on  the existence  of  the  decree  and  ignorance  of  the  mistake therein.   In such a case the exercise of power  to  correct the mistake would be inequitable or inexpedient. No one can quarrel with these propositions.  But considering the  nature  of the mortgage, the cause of  action  and  the prayers  in the suit, the absence of any contest as  regards that  cause of action and the prayers, and the tenor of  the judgment until it came to its penultimate part, there can be no doubt that the intention of the Trial Court was to pass a preliminary  decree for foreclosure as prayed for  and  that was what the court had decided.  It was therefore through an accidental slip that in that final part of the judgment  the Subordinate Judge used the phraseology used in a preliminary decree for sale.  Therefore, there is no question of a wrong judgment having been passed by the Judge or the  preliminary decree correctly representing that which was wrongly decided by the Judge.  If that had been so, neither the judgment nor the  decree could be corrected and the obvious remedy  would be  by  way  of  an appeal. In  Barhamdeo  Singh  v.  Harnam Singh(1)  though  only one of the  defendants  appeared  and contested  the  suit the order made was that  "the  suit  be decreed  with costs." This was allowed to be altered on  the ground  that it was contrary to the intention of the  court, that such an intention had to be gathered from the  judgment as  a  whole and that the decree  following  the  concluding portion  of  the  judgment awarding costs  against  all  the defendants was not in accord with the true intention of  the court. The  second contention is based on the observations of  Lord Herschell in Hatton v. Harris(2) where he stated--               "that there may possibly be cases in which  an               application  to  correct  an  error  of   this               description would be too late.  The rights  of               third parties may have intervened, based  upon               the  existence of the decree and ignorance  of               any  circumstances  which would tend  to  shew               that it was erroneous, so as to disentitle the               parties to the suit or those interested in  it               to  come at so late a period and ask  for  the               correction               to be made."

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(1)  18 C. W. N. 772. (2) [1892] A.C. 547 at 558. 27 It is true that the respondent purchased part of the  equity of  redemption  from his judgment-debtor, Hazra,  after  the preliminary  decree Was passed.  It is also true  that  that decree was not in the form of a foreclosure decree but of  a mortgage decree for sale.  But according to Lord Herschell’s observations, the intervening interest of third parties must be based on the existence of the decree and ignorance of any circumstances   which  would  tend  to  show  that  it   was erroneous.   No  such thing has happened and indeed  it  was never  the  case  of the respondent that  he  purchased  the interest  of  the  said Hazra because he was  aware  that  a preliminary  decree for sale has been passed and that  under that  decree  he would be entitled to redeem  the  mortgaged property  or  that he was ignorant of the  mistake  in  that decree.  That being the position it is difficult to see  how the  case  of Hatton v. Harris() can apply  to  the  present case.   In  this  view, the Trial Court  had  the  power  to correct the accidental slip which had crept in its  judgment and  correct  that  error by passing  the  final  decree  in accordance  with its true intention.  The final  decree  was passed after notice to the mortgagors and the said Hazra and after hearing them.  The respondent was not made a party  to that application as the appellants were never made aware  of his  purchase.   The  respondent also had not  cared  to  be brought  on record in substitution of or in addition to  the said  Hazra from whom he derived his interest in the  equity of redemption.  In our view, both the contentions raised  by the respondent in this behalf must be rejected. What then is the position of the respondent once it is  held that the final decree for foreclosure was validly passed  by the  Trial  Court  ? Could he challenge that  decree  in  an appeal against it in the High Court on the basis that he was entitled  to  redeem the said mortgage?  Section 91  of  the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest  in or  charge  upon the property mortgaged or in  or  upon  the right to redeem the same may redeem or institute a suit  for redemption   of  such  mortgaged  property.   An   execution purchaser  therefore of the whole or part of the  equity  of redemption  has the right to redeem the mortgaged  property. Such a right is based on the principle that he steps in  the shoes of his predecessor-in-title and has therefore the same rights   which  his  predecessor-in-title  had  before   the purchase.  Under section 59A of the Act also all persons who derive  title  from the mortgagor are included in  the  term "mortgagor"  and  therefore entitled to redeem.   But  under section  52 which incorporates the doctrine of lis  pendens, during  the  pendency  of a suit in which any  right  to  an immovable property is directly and specifically in  question such  a  property cannot be transferred or  otherwise  dealt with by any party to the suit or proceeding so as to  affect the rights of any (1)  [1892] A.C. 547 at 558. 28 other party -thereto under any decree or order which may  be made therein except under the authority of the court and  on such terms as it may impose.  Under the Explanation to  that section the pendency of such a suit commences from the  date of its institution and continues -until it is disposed of by a  final  decree  or  order  and  complete  satisfaction  or discharge of such a decree or order has been obtained.   The purchaser pendente lite under this doctrine is bound by  the

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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 through  him. This principle is well illustrated in Radhamadhub Holdar  v. Monohar(1)  where the facts were almost similar to those  in the  instant  case.  it is true  that  section  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).   It follows  that the respondent having purchased from the  said Hazra  while the appeal by the said Hazra against  the  said preliminary  decree  was  pending in, the  High  Court,  the doctrine  of lis pendens must apply to his purchase  and  as aforesaid  he was bound by the result of that suit.  In  the view  we  have taken that the final foreclosure  decree  was competently  passed by the Trial Court, his right to  equity of  redemption  was extinguished by that decree and  he  had therefore  no longer any right to redeem the said  mortgage. His  appeal against the said final decree  was  misconceived and  the  High  Court was in error in  allowing  it  and  in passing  the said order of remand directing the Trial  Court to  reopen  the  question of redemption  and  to  allow  the respondent  to participate in proceedings to amend the  said preliminary decree. In  the result, we allow the appeal, set aside the  judgment and decree passed by the High Court and restore the judgment and  decree passed by the Trial Court.  The respondent  will pay the appellants’ costs all throughout. G.                                                        C. Appeal allowed. (1)15 I.A. 97. (3) 24 I.A. 170. (2) 12 I.A. 171. 29