Judgement Appeal (No. 71 of 1946) from a judgment and decree of the High Court (August 27, 1942) which substantially varied a judgment and decree of the Court of the Subordinate Judge at Asansol (November 24, 1939) in a mortgage suit brought by the present appellant as mortgagee. The following facts, material to the issues now calling for determination, are taken from the judgment of the Judicial Committee. On November 15, 1931, Sheikh Sukur Mohammed, the first named respondent (hereinafter called the mortgagor), obtained a lease of some three-fifths of an acre in the town of Asansol for three years at a rent of Rs. 12 per month and with a right of renewal. The mortgagor proceeded to construct a cinema on that plot and, falling short of funds, took into partnership Oscar Gerald Birt and Pramatha Nath Mukherjee (hereinafter called the new partners) who were, it appeared, the predecessors in title of the respondents other than the mortgagor. That transaction was effected by an unregistered agreement in writing of June 8, 1932, which provided (a) for the carrying on of the cinema business in partnership by the mortgagor and the new partners, with the former having an eight annas interest and each of the new partners a four annas interest, and (b) for the sale by the mortgagor to the new partners of the mortgagors eight annas interest, or half share, in the cinema business and its assets, which included the leasehold already mentioned, for the sum of Rs. 15,000 " free from "all encumbrances." The parties to that agreement fell out, and on September 20, 1932, the new partners commenced a suit —No. 229 of 1932—against the mortgagor. In that suit the new partners pleaded the agreement of June 8, 1932, alleged that they had advanced thereunder a sum of Rs. 17,375, and claimed, inter alia, specific performance of the said agreement for sale and, alternatively, a decree for the said advance of Rs. 17,375 with a declaration that it and costs were a first charge on the premises described, which included the said leasehold. On the next day, September 21, 1932, the mortgagor executed a mortgage deed of the said leasehold, with fittings and equipment, in favour of the appellant to secure an advance of Rs. 6,000 with interest. That was a simple mortgage, duly registered, and the present suit was founded on it. On the next day, September 21, 1932, the mortgagor executed a mortgage deed of the said leasehold, with fittings and equipment, in favour of the appellant to secure an advance of Rs. 6,000 with interest. That was a simple mortgage, duly registered, and the present suit was founded on it. Suit No, 229 (to which the appellant was throughout a stranger) ended in a compromise between the mortgagor and the new partners which was reduced to writing and was framed on the basis that the new partners should drop out of the cinema business and relinquish their rights under the agreement of June 8 in consideration of the mortgagor paying them a sum of Rs. 18,500 in respect of moneys advanced and costs of suit. The following stipulations therein were material Clause 2. "That a final decree for the aforesaid sum of "Rs. 18,500 will be passed in favour of the plaintiffs and that "the defendant will make payment of the said decretal sum "by monthly payment as described below." Clause 6. " That "the decretal dues of the plaintiffs as stated above are a first " charge on the cinema house, lands, machineries, plants, tools, "furniture, equipment, etc., mentioned in the schedule below 8 Law. Rep. 75 Ind. App. 165 ( 1947- 1948) Gouri Dutt Maharaj V. Sheikh Sukur Mohammed 100 "and shall continue a first charge till full satisfaction of this "decree." Clause 12. "That the defendant assures the " plaintiffs that there is no charge or mortgage on the properties " mentioned in the schedule below save and except one mortgage " in favour of Gouri Dutt Maharaj of Asansol for Rs. 6,000 " (six thousand) subsequent to the aforesaid agreement dated "8th June, 1932." The schedule referred to specified the leasehold in question. The compromise was accepted by the Subordinate Judge at Asansol on November 17, 1932, as appeared from the final decree in suit No. 229 which ordered that " the suit be decreed in terms of petition of compromise " and directed that the compromise be made part of the decree. On July 8, 1938, the appellant instituted the present suit for enforcement of his mortgage and recovery of Rs. 12,000 claimed as then due on foot thereof. The mortgagor did not contest the suit. On July 8, 1938, the appellant instituted the present suit for enforcement of his mortgage and recovery of Rs. 12,000 claimed as then due on foot thereof. The mortgagor did not contest the suit. Of the various defences raised by the other defendants the only one now material was the plea of those representing or claiming through the new partners, both of whom were dead, tht the mortgage was effected during the pendency of suit No. 229 and that, in consequence, the appellants claim was not maintainable by reason of the provisions of s. 52 of the Transfer of Property Act, 1882. That section, as amended, read thus "During the pendency in any court having authority in "British India, or established beyond the limits of British "India by the Governor-General in Council, 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 therein, except under the authority of "the Court and on such terms as it may impose. "Explanation.—For the purposes of this section, the pendency "of a suit or proceeding shall be deemed to commence from " the date of the presentation of the plaint or the institution " of the proceeding in a Court of competent jurisdiction, and " to continue until the suit or proceeding has been disposed " of by a final decree or order and complete satisfaction or " discharge of such decree or order has been obtained, or " has become unobtainable by reason of the expiration of any " period of limitation prescribed for the execution thereof "by any law for the time being in force.” The Subordinate Judge held against the defence based on s. 52 and found in favour of the appellant, the principal ground of his decision being that the agreement of June 8, 1932, should have been registered and that, as that had not been done, it was inadmissible in evidence and could not create a valid charge. On appeal, the High Court (Mukherjea and Pal JJ.) upheld the defence in question and set aside the decree appealed from save as respects the mortgagor. 1948. March 4. On appeal, the High Court (Mukherjea and Pal JJ.) upheld the defence in question and set aside the decree appealed from save as respects the mortgagor. 1948. March 4. Rewcastle K.C. and Subba Row for the appellant. The question for determination, whether the appellants claim on the basis of the mortgage is affected by the doctrine of lis pendens as set out in s. 52 of the Tranfer of Property Act, turns mainly, if not entirely, on the construction to be given to the provisions of that section. It is because the mortgage was one day later than the institution of the suit by the partners that it is said that the appellants suit is affected by the doctrine of lis pendens. When the Transfer of Property Act makes provision for the lis pendens it means, in effect, that if anybody who is a party to a suit encumbers the property pending the determination of the action the person taking the encumbrance is postponed to the plaintiff so far as the plaintiff is subsequently successful. It is not here contested either that the mortgage on which the appellants suit is based " transferred or otherwise dealt with the property, or that the consent decree in the partners suit would be a decree within the meaning of s. 52. It is submitted, however, that under the compromise not a scintilla of relief claimed in the suit was awarded, and not a scintilla of relief was awarded which could have been claimed in that suit. The question really comes down to 8 Law. Rep. 75 Ind. App. 165 ( 1947- 1948) Gouri Dutt Maharaj V. Sheikh Sukur Mohammed 101 whether the compromise decree was in all the circumstances such a decree as is contemplated by s. 52. [Reference was made to the definition of "decree" in s. 2, sub-s. 2, of the Code of Civil Procedure.] The compromise here does not deal with any right to immovable property which was in issue in the plaint as originally framed. The mortgage of the appellant was not made during the pendency of any suit in which the right to immovable property was in issue, and this compromise decree is not a decree which is covered by s. 52 at all. The mortgage of the appellant was not made during the pendency of any suit in which the right to immovable property was in issue, and this compromise decree is not a decree which is covered by s. 52 at all. It is submitted that " a decree made therein " means a decree made in that suit in relation to a claim to immovable property which was in issue in that suit. [Reference was made to Mullas Transfer of Property Act, 2nd ed. ( 1936), p. 221 to Or. 23, r. 3, of the Civil Procedure Code and to Hemanta Kumari Debi v. Midnapur Zamindari Company (( 1919) L.R. 46 I.A. 240, 246.).] The mortgage in suit is not affected by the doctrine of lis pendens or similar provisions of s. 52 of the Act of 1882 by reason of the agreement of June 8, 1932, or the pendency of the partners suit. Further, the terms of cl. 12 of the compromise are to be interpreted as " we agree "that there is one antecedent mortgage," and that must have been put in for the express purpose of preserving the appellants right, for, if that is not so, on what conceivable basis can it be justified. The compromise recognized the priority of the suit mortgage and the decree made in terms thereof must be deemed to have the same effect. The respondents did not appear. April 6. The judgment of their Lordships was delivered by LORD MACDERMOTT, who stated the facts set out above and continued The only question for determination by the Board is whether, in the circumstances, s. 52 of the Transfer of Property Act affected the appellants mortgage. It was conceded, and rightly, in the opinion of their Lordships, that this mortgage was executed during the pendency of suit No. 229, that it " transferred or otherwise dealt with" the land in question within the meaning of the section, and that the expression " decree or order " therein includes a decree or order made pursuant to agreed terms of compromise. Collusion was not suggested, and it was admitted that the mortgage had not been made with the authority of the court. It may, indeed, be that the mortgagor had no chance to seek such authorization, for it does not appear that he was aware of the suit when he mortgaged on the day following its commencement. Collusion was not suggested, and it was admitted that the mortgage had not been made with the authority of the court. It may, indeed, be that the mortgagor had no chance to seek such authorization, for it does not appear that he was aware of the suit when he mortgaged on the day following its commencement. In the opinion of their Lordships there can be no doubt that in suit No. 229 a right to immovable property—the leasehold on which the cinema was erected—was, in the words of the section, u directly and specifically in question " both on the claim for specific performance and the alternative claim for the declaration of a charge in respect of the sum advanced. The broad purpose of s. 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and, in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of June 8, 1932, had not been registered. Had the question now under consideration fallen to be determined before the compromise and final decree in suit No. 229 the appellants mortgage would clearly have been subject to the provisions of the section as, whatever course the suit might ultimately have taken, no one could then have said, without prejudging the issue, that the mortgage would not affect the decretal rights which the plaintiffs might yet obtain in the proceedings. It was, however, contended on behalf of the appellant that in the circumstances of the present case the position had to be regarded in the light of the compromise decree. The argument raised two distinct points. First, it was said that this decree accorded rights which were not claimed in the plaint and was, so to speak, outside the scope of the litigation. Their Lordships are unable to accede to this submission. It may well be that s. 52 does not contemplate a decree or order which is entirely alien to the issues raised between the parties. Their Lordships are unable to accede to this submission. It may well be that s. 52 does not contemplate a decree or order which is entirely alien to the issues raised between the parties. The wording is —" any decree or order which may 8 Law. Rep. 75 Ind. App. 165 ( 1947- 1948) Gouri Dutt Maharaj V. Sheikh Sukur Mohammed 102 be made therein," that is, in the suit or proceeding. But it applies to a compromise decree and such a decree cannot, by reason of its very nature, be expected invariably to reflect the precise relief claimed. Here the plaint sought, as an alternative to specific performance, a charge on the property in question. In substance the compromise decree provided for that relief, and the fact that the plaintiffs, by the terms of the compromise, relinquished their rights under the agreement of June 8, 1932, cannot, in the view of the Board, lead to a different conclusion. The second point turned on the construction of the compromise and was to the effect that the parties thereto had agreed that the appellants mortgage should have priority that it, accordingly, did not conflict in any way with the rights flowing from the compromise decree. This point was rested on cl. 12 of the compromise, which stated that, subsequent to the agreement of June 8, 1932, there was no mortgage on the property in question save the appellants. Had it mentioned the date of the mortgage and used language apt to indicate that the parties regarded it as entitled to priority, the case for implying a modification of the terms of cl. 6, which expressly provided that the decretal dues should be a first charge, would be appreciably stronger. As cl. 12 stands, however, their Lordships cannot agree that it suffices to qualify the clear and emphatic provisions of cl. 6 or to preclude those now representing the plaintiffs in suit No. 229 from taking advantage of such infirmities as have attached to the appellants security. For these reasons their Lordships are of opinion that the decision of the High Court was right and should be affirmed. They will therefore humbly advise His Majesty that the appeal be dismissed. The respondents did not appear and there will be no order as to the costs of the appeal.