Judgement Appeal by special leave from a decree of the above Court (August 10, 1904), affirming a decree of the Subordinate Judge of Sitapur (July 4, 1903). The question decided was whether an alienation made by a mortgagor two days after a suit brought against him by the mortgagee, but before he had been served with a summons, was an alienation pendente lite of no effect against any decree made in the suit. The alienation was made on July 15, 1891, by way of second mortgage. The second mortgagee obtained a decree without making the plaintiff (the first mortgagee) a party, and in execution the Law. Rep. 34 Ind. App. 102 ( 1906- 1907) Faiyaz Husain Khan V. Munshi Prag Narain 26 property was sold to the appellant. The respondent was a purchaser under the first mortgagees decree, and sued to eject the appellant. Both Courts decided that the appellants purchase, prior in point of time to that of the respondent, was void against him under s. 52 of Act IV. of 1882 as having been made pendente lite. The appellate Court added that the respondent was entitled to priority on the ground that " a purchaser at a sale held in execution of a decree for sale on a first mortgage made by a person in possession of the property, the decree having been obtained in a suit brought in strict accordance with s. 85 of Act IV. of 1882, is entitled to possession as against a purchaser at a sale held in execution of a decree for sale obtained in a suit brought on a second mortgage in defiance of the rule laid down in that section." Ross, for the appellant, contended that the doctrine of lis pendens was not applicable to the facts of the case. The mortgage of July 15, 1891, no doubt was after suit filed, but two months before the service of summons. He referred to s. 52, above mentioned ; Radhasyam Mohapattra v. Siba Panda (( 1888) I. L. R. 15 Calc. 647.) ; Parsotam Saran v. Sanchi Lal (( 1899) I. L. R. 21 Allah. 408.) Abboy v. Annamalai (( 1888) I. L. R. 12 Madr. 180.) ; 2 Coote on Mortgages, p. 1344; Fisher, 5th ed. He referred to s. 52, above mentioned ; Radhasyam Mohapattra v. Siba Panda (( 1888) I. L. R. 15 Calc. 647.) ; Parsotam Saran v. Sanchi Lal (( 1899) I. L. R. 21 Allah. 408.) Abboy v. Annamalai (( 1888) I. L. R. 12 Madr. 180.) ; 2 Coote on Mortgages, p. 1344; Fisher, 5th ed. p. 533; Hukm Chands Law of Res Judicata, p. 694 ; and to two American cases there cited, which also recognized that there could be no lis pendens until after the summons had been served—Leitch v. Wells (( 1872) 48 N. Y. 611.) and Dawson v. Mead. (71 Wisconsin, 611.) Even assuming that the respondent had made out his title to possession as against the appellant, still the appellant was entitled to redeem. De Gruyther, for the respondent Prag Narain, contended that the sale to the appellant was void as against the sale to the respondent, both under the general doctrine of lis pendens and under s. 52 of the Transfer of Property Act. There is no foundation for the doctrine that a suit does not become contentious within the meaning of s. 52 until after service of summons; but even if there were it would not avail the appellant, for the evidence shews that he purchased with full notice of the suit brought and decree obtained by the first mortgagee, Newal Kishore. The decree for sale under which the respondent bought was not open to objection, and it was obtained by the first mortgagee. The appellants purchase was under a decree obtained by the second mortgagee without making the first mortgagee a party. With regard to the claim to redeem, that was too late, for it was after the sale to the respondent had been confirmed. The equity to redeem was extinguished see Transfer of Property Act, ss. 83 and 85. Ross replied. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal from the Court of the Judicial Commissioner of Oudh, which affirmed a decision of the Subordinate Judge of Sitapur. Leave to appeal was granted on the ground that the appeal involved a substantial question of law. What the question was that was supposed to be involved is, however, left somewhat in obscurity. The facts are not in dispute. On June 14, 1889, Hamid Husain, the owner of Mauza Bangawan, mortgaged it to Newal Kishore. Leave to appeal was granted on the ground that the appeal involved a substantial question of law. What the question was that was supposed to be involved is, however, left somewhat in obscurity. The facts are not in dispute. On June 14, 1889, Hamid Husain, the owner of Mauza Bangawan, mortgaged it to Newal Kishore. On July 13, 1891, Newal Kishore brought a suit on his mortgage. On August 23, 1892, he obtained a decree for sale, which was made absolute on November 21, 1895. On February 21, 1901, the property was sold in execution of Newal Kishores decree and purchased Law. Rep. 34 Ind. App. 102 ( 1906- 1907) Faiyaz Husain Khan V. Munshi Prag Narain 27 by the respondent Prag Narain, who was the son and the representative of the decree holder. On July 2, 1901, Prag Narain obtained a sale certificate and attempted to recover possession of the property. He was, however, obstructed in every possible way by the appellant Faiyaz Husain, who was in possession under a decree for sale obtained on a subsequent mortgage. Prag Narain was therefore compelled to bring this suit. There was no incumbrance upon the property either at the date of the mortgage of June 14, 1889, to Newal Kishore or at the date of the institution of Newal Kishores suit on July 13, 1891, But on July 15, 1891, before any summons in Newal Kishores suit was served, a second mortgage was granted by the mortgagor to Mirza Muzaffar Beg. Mirza Muzaffar Beg put his mortgage in suit on March 20, 1894, without making the first mortgagee a party, and in the absence of the first mortgagee obtained a decree for sale. In execution of this decree the property mortgaged to Mirza Muzaffar Beg was put up for sale on December 20, 1900, and bought by the appellant Faiyaz Husain, who was the son of Hamid Husain, and who had attained his majority in 1894. Faiyaz Husain managed to get possession and resisted all attempts on the part of the respondent Prag Narain to dispossess him. The case seems to their Lordships to be clear. The mortgage to Mirza Muzaffar Beg was made during the pendency of Newal Kishores suit, which was in its origin and nature a contentious suit, and was at the time being actively prosecuted. Therefore, under s. 52 of the Transfer of Property Act (No. IV. The case seems to their Lordships to be clear. The mortgage to Mirza Muzaffar Beg was made during the pendency of Newal Kishores suit, which was in its origin and nature a contentious suit, and was at the time being actively prosecuted. Therefore, under s. 52 of the Transfer of Property Act (No. IV. of 1882), it did not affect the rights of Newal Kishore under the decree made in his suit. Their Lordships are unable to agree in the view which seems to have obtained in India that a suit contentious in its origin and nature is not contentious within the meaning of s. 52 of the Act of 1882 until a summons is served on the opposite party. There seems to be no warrant for that view in the Act, and it certainly would lead to very inconvenient results in a country where evasion of service is probably not unknown or a matter of any great difficulty. The doctrine of lis pendens, with which s. 52 of the Act of 1882 is concerned, is not, as Turner L.J. observed in Bellamy v. Sabine (( 1857) 1 D. & J. 566, at p. 584.), " founded upon any of the peculiar tenets of a Court of Equity as to implied or constructive notice. It is .... a doctrine common to the Courts both of law and of equity, and rests .... upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail." The correct mode of stating the doctrine, as Cranworth L.C. observed in the same case, is that " pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent." Apart, however, from the doctrine of lis pendens, which seems to their Lordships to apply to the present case, it is plain that at the date of his purchase Faiyaz Husain knew all about the mortgage to Newal Kishore and the decree made on the basis of that mortgage, and he knew that the sale proceedings were actually in progress, for in July, 1898, he brought a suit against Prag Narain asking for a declaration that Newal Kishores mortgage, and the decree passed upon it, were invalid, and that the property was not liable for attachment and sale. At the hearing of the appeal to the Court of the Judicial Commissioner Faiyaz Husain asked to be let in to redeem. The Court very properly rejected that application. It has been repeated at the hearing before this Board. There seems to be no ground for the application. Before the sale to Prag Narain was confirmed Faiyaz Husain had every opportunity of redeeming the property. He never offered to do so. On the sale being confirmed the equity of redemption was extinguished. Prag Narain appears to be in as good a position as any outside purchaser unconnected with the property would have been. Law. Rep. 34 Ind. App. 102 ( 1906- 1907) Faiyaz Husain Khan V. Munshi Prag Narain Their Lordships will, therefore, humbly advise His Majesty that this appeal should be dismissed. The appellant will pay the costs of the appeal.