Judgment :- 1. This is an appeal by the plaintiffs against the decree and judgment of the learned Subordinate Judge, Palghat confirming the dismissal of their suit O. S.350/49 by the learned District Munsiff of Palghat. 2. The suit was for redemption and recovery of possession of the plaint properties with arrears of Purappad etc., on the strength of a Karipanayam executed by the plaintiffs to the 1st defendant on 29-7-1938, Ext - Al in these proceedings. The suit was resisted by the defendants on the ground that the plaintiffs have no title to the properties on the date of the execution of Ext- Al. It was also particularly contended by the 2nd defendant that he has become the decree-holder-purchaser of the suit properties on 8-8-1932 in execution of his mortgage decree in O.S. 421/1937 District Munsiff's Court, Ottapalam, and if at all, he can only be a Kanom tenant and not bound by Ext- Al. 3. Both the lower courts have accepted the contention of the defendants and dismissed the plaintiffs' suit. 4. In appeal before me, the substantial contention raised by Mr. N. Sundara Ayyar, learned counsel for the appellants, was that the court proceedings and the sale in consequence of the said proceedings relied upon by the defendants are vitiated by the doctrine of lis pendens and as such, his clients have got superior rights in the suit properties and that they are entitled to redeem the Karipanayam. He also contended that in any event, the principles of S.43 of the Transfer of Property Act will apply, as the plaintiffs' tavazhi have ultimately been allotted the Kanom rights in the suit properties by the partition that took place in the main tarwad 5. Mr. K. Kuttikrishna Menon, learned counsel for respondents, on the other hand, contends that his clients have got a valid title to the suit properties and it is the proceedings taken by the plaintiffs that are vitiated by the doctrine of lis pendens. He also contended that neither the scope of S.43 of the Transfer of Property Act, nor the Kanom rights of the plaintiffs need be considered in these proceedings, as the suit itself is for redemption of the Karipanayam executed by the plaintiffs on 29-7-1938 under Ext- Al. 6. Before taking the question of lis pendens, the contention regarding S.43 of the Transfer of Property Act can be disposed of. 6. Before taking the question of lis pendens, the contention regarding S.43 of the Transfer of Property Act can be disposed of. As rightly contended by Mr.K. Kuttikrishna Menon the suit is for redemption of the usufructuary mortgage executed by the plaintiffs on 29-7-1938 to the 1st defendant under Ext-Al. The suit being specifically filed on this basis, the only question that will have to be considered is as to whether they had the right to execute the usufructuary mortgage on that date. Their Kanom rights does not at all come into the picture in these proceedings. Therefore, the contention relied upon by Mr. Sundara Ayyar based on S.43 of the Transfer of Property Act cannot help him in any manner. 7. In dealing with the main contention of both the parties on the question of lis pendens, the following statement of facts are very material. 8. The plaintiffs' tarwad demised the suit properties on Kanom under Ext. A5 on 15-11-1926 in favour of one Kesavan Nayar. Kesavan Nayar, in turn, appears to have assigned his rights in favour of his wife immediately after Ext- A5. In execution of a decree in a Small Cause suit against Kesavan Nayar's wife, Penjukutti Amma, her Kanom rights were sought to be attached & sold. So, on 15-9-1935 Penjukutti Amma entered into an agreement with one Saivu Rowthar for sale of her rights with a direction to him to discharge the decree debt in S.C. S.1118/1124. Due to the default of Penjukutti Amma to execute a sale deed in his favour, the said Rowther filed O. S.396/1935 on 19th December 1935 in the District Munsiff's Court, Palghat against Penchukutti Amma for specific performance. On 12-3-1936 the said court passed a decree in his favour, Ext-A7. In spite of the decree, Penchukutti Amma did not execute the sale deed and so, the court executed a sale deed in favour of Saiva Rowther on 16-7-1938 being Ext-A9. 9. The said Saivu Rowther surrendered the Kanom right in favour of the plaintiffs' tavazhi on 29-7-38 evidenced by Ext-A3. On the same date, the plaintiffs executed in favour of the 1st defendant, the suit usufructuary mortgage, Ext-Al. The suit is filed for redemption of this usufructuary mortgage. 10. 9. The said Saivu Rowther surrendered the Kanom right in favour of the plaintiffs' tavazhi on 29-7-38 evidenced by Ext-A3. On the same date, the plaintiffs executed in favour of the 1st defendant, the suit usufructuary mortgage, Ext-Al. The suit is filed for redemption of this usufructuary mortgage. 10. In the meanwhile, on 27-3-1930, Penchukutti Amma, after the assignment of the Kanom rights by her husband in her favour in 1925, executed, a simple mortgage in favour of one Achutha Kurup who ultimately assigned his rights in favour of the 2nd defendant in 1937. The 2nd defendant filed on 21-7-37, O. S.281/1937 District Munsiff's Court, Palghat for recovering his mortgage amount by sale of the properties. The said suit was transferred in the same year to the District Munsiff's Court, Ottapalam and renumbered there as O. S.421/1937. There was the usual mortgage decree for sale passed by that court on 17-12-1937 and ultimately, the properties were sold in court auction on 8-8-1938 and the 2nd defendant became, the decree-holder-auction-purchaser of the suit properties. 11. As stated earlier, each side relies upon the court proceedings in his favour and challenges the proceedings of the other side as being affected by the doctrine of lis pendens. 12. The short point for consideration will be whether, on the date when the plaintiffs executed the suit document, Ext-Al, they had a subsisting title in the properties to create the said usufructuary mortgage. 13. It will be seen from the different dates given in respect of the transactions and court proceedings mentioned above that the 2nd defendant's court proceedings was really based upon the mortgage executed in favour of his assignor Achutha Kurup by Penjukutti Amma on 27-3-1930. On that date, it will be seen that nobody else was interested in this property excepting Penjukutti Amma It was only very late in 1935, that is, 15-9-1935 that the said Penjukutti Amma entered into an agreement in favour of Saivu Rowther for sale and the court proceedings started by Saivu Rowther were only in December 1935. The proceedings taken by the 2nd defendant, though in 1937, really related to his rights under the mortgage created as early as 27-3-1930. Therefore, any rights created by Penjukutti Amma in favour of Saivu Rowther could only be subject to the rights of the 2nd defendant. The proceedings taken by the 2nd defendant, though in 1937, really related to his rights under the mortgage created as early as 27-3-1930. Therefore, any rights created by Penjukutti Amma in favour of Saivu Rowther could only be subject to the rights of the 2nd defendant. In fact, even the contract for sale by itself will not create any interest or charge on the immovable property in favour of Saivu Rowther. (See S.54 Transfer of Property Act). That a suit based upon a mortgage of a prior date during the pendency of other proceedings is not hit by the doctrine of lis pendens, has been laid down in several cases. It is unnecessary to refer to all the decisions excepting to refer to the decision of the Division Bench in Chinnaswami v. Darmalinga (A.I.R.1932 Madras 566). At page 572 the learned judges observe : "It is that the rule only applies to transfers by the plaintiff or defendant of their respective interests after the suit including transfers by Court sale in money decrees against either party. But it does not apply to previously existing transfers (including mortgages) or legal proceedings to enforce such transfers by those entitled. On principle the sale in pursuance of a mortgage decree, the mortgage having been executed before the institution of the suit, is not affected by the doctrine of lis pendens." To a similar effect is a Division Bench ruling of the Madras High Court in Natesa Chettiar v. Subbanarayana (A. I. R.1945 Madras 91). At page 92, the learned judges observe: "The transfer to which the provisions of S.52, Transfer of Property Act, can properly be applied is the creation of the mortgage itself, not the subsequent sale in the enforcement of the mortgage. " 14. Mr. N. Sundara Ayyar contended that the doctrine of lis pendens applies also to suits for specific performance and therefore, the pendency of his suit O. S.396/1955 will operate as lis pendens regarding O.S. 282/1937. He also relied upon the decision of the Privy Council in Gouri Dutt Maharaj v. Sheikh Sukur Mohammed (P.C.) 1948 -11 M. L. J. 79) in support of this proposition. Nobody need quarrel with the proposition that lis pendens will apply also to suits for specific performance. He also relied upon the decision of the Privy Council in Gouri Dutt Maharaj v. Sheikh Sukur Mohammed (P.C.) 1948 -11 M. L. J. 79) in support of this proposition. Nobody need quarrel with the proposition that lis pendens will apply also to suits for specific performance. But in this case, the mortgage itself had been executed as early as 27-3-1930 long before the agreement which led to the suit for specific performance namely. O. S.396/1935 It will be seen from a reading of the decision of the Privy Council itself relied upon by Mr. Sundara Ayyar that the suit for specific performance was filed and the next day, the defendant therein executed a mortgage of the same properties. That is not the case before us. In fact, as will be seen from page 80 of the report, it was conceded before Their Lordships that the mortgage therein was executed during the pendency of the suit for specific performance and that it transferred or otherwise dealt with the land in question there within the meaning of S.52 of the Transfer of Property Act. Therefore, this decision of the Privy Council will not assist Mr. Sundara Ayyar. 15. It will be seen that on the date when the plaintiffs purported to execute the suit document, Ex. Al, the property was already under mortgage which resulted also in a decree on 17-12-1937. Therefore, the property was already the subject matter of a lis and any transfer by the plaintiffs under Ex. Al would only be subject to the rights of the mortgagee 2nd defendant. Ultimately, the 2nd defendant also became the purchaser by virtue of the decree obtained by him in O. S.281/1937. It follows that the mortgage dated 27-3-1930, the proceedings in O. S.281/1937 District Munsiff's Court, Palghat, and the subsequent sale and purchase by the 2nd defendant on 8-8-1938 prevails over any rights of the plaintiffs. The rights of the 2nd defendant have become concluded and final by virtue of his purchase on 8-8-1938 and the plaintiffs have no further rights for redemption of the said property on the basis of Ext. Al. 16. In the result, the decrees and judgments of both the lower courts are confirmed and the Second Appeal is dismissed with costs. Leave refused. Dismissed.