NARAYAN GOVIND ANIKHINDI v. KRISHNAJI — 1972 DIGILAW 158 (KAR)

VENKATARAMIAH, J. ( 1 ) THE above appeal is filed against the judgment and decree passed in spl. C. S. No. 19 of 1964 on the file of the Civil Judge, Bijapur. ( 2 ) THE case of the plaintiffs in the above suit is as follows: One Krishnaji kulkarni had five sons by name Srinivasa, Ramachandra, Bhimaji (plaintiff 4), Narayan (plaintiff 5) and Vaman (plaintiff 6 ). Srinivasa died leaving behind him his widow Bhimabai (plaintiff 7) and Ramachandra died leaving behind him three sons by name Krishnaji (plaintiff 1), laxman (plaintiff 2) and Venkaji (plaintiff 3 ). The first above named krishnaji mortgaged with possession the properties described in the schedule attached to the plaint on 12-12-1929 for a sum of Rs. 9,000 only in favour of one Waman Gadgil. The said Waman Gadgil sold his right, title and interest in the suit properties on 28-8-1938 in favour of one jaganath Asharam Marwadi (hereinafter referred to as Jagannath ). Jagannath had two daughters by name Kamobai and Gopubai. Gopubai died leaving behind her only son Radheshyam (defendant 2 ). After the death of Krishnaji, the mortgagor abovenamed, Ramachandra, father of plaintiffs 1 to 3 instituted a suit in Civil Suit No. 200 of 1947 on the file of second Class Sub-Judge in the former princely State of Jamkhandi under s. 16 of the Jamkhandi Agriculturists. Relief Act (Act 1 of 1939) (hereinafter referred to as the Act) against Waman Gadgil and Jagannath for accounts in respect of the suit mortgage. Plaintiffs 4 to 6 and Srinivas, husband of plaintiff 7 were also impleaded as defendants in that suit. The said suit ultimately ended in a preliminary decree for redemption of the mortgage and a final decree for possession was passed in favour of the pfaintiffs therein. Pursuant to the said final decree, possession of the properties were taken by the plaintiffs therein on 14th and 15th of April, 1962. It appears that during the pendency of the proceedings which were commenced in C. S. No. 200/47, defendants 1 and 2 had mortgaged the suit properties in favour of defendant 3 under a mortgage deed dt. 10-8-1953. Defendant 4 is the natural son of defendant 3 and defendant 5 is a grandson of defendant 3. Defendant 4 had been given away in adoption to one govind belonging to the same family. 10-8-1953. Defendant 4 is the natural son of defendant 3 and defendant 5 is a grandson of defendant 3. Defendant 4 had been given away in adoption to one govind belonging to the same family. As defendants 3 to 5 were all interested in the said mortgage deed executed in favour of defendant 3 on 10-8-1953 by defendants 1 and 2, they instituted a suit in Spl. C. S. No. 20 of 1959 on the file of the Civil Judge, Bijapur for a decree for sale of the suit properties on the basis of the mortgage deed executed in their favour. The said suit having been decreed, they instituted execution proceedings in Dharkhasth No. 2 of 1963 for getting the properties sold. At that stage, the plaintiffs filed an application before the Civil Judge stating that defendants 3 to 5 could not get the suit properties sold as they had no right to do so, and that, therefore, the excution proceedings should be stayed. The said application was rejected on the ground that it did not lie under S. 47 CPC. The plaintiffs thereafter filed the above suit for a declaration that the decree obtained by defendants 3 to 5 in SCS. No. 20/59 against defendants 1 and 2 and others was not binding on them and for permanent injunction restraining defendants 3 to 5 from executing the said decree against the suit properties. Defendants 1 and 2 did not contest the suit. ( 3 ) DEFENDANT 4 filed a written statement which was adopted by defendants 3 and 5, containing the following allegations: that defendants 3 to 5 had no knowledge of proceedings commenced with CS. No. 200/47 until an application was filed by the plaintiffs in the execution proceedings instituted by defendants 3 to 5 pursuant to the decree in SCS. No. 20/59: that the plaintiffs were not in possession of the suit properties, and that the suit was not maintainable since the plaintiffs had no subsisting right, title and interest. in the suit properties. One Bindo Govinda Pothe had obtained a money decree against Krishnaji the mortgagor abovenamed and his sons and the said decree was assigned in favour of one Gajanana Krishna Gadgil and from Gajanana Krishna Gadgil, wamana Krisnna Gadgil the mortgagee under the document dt. 12-12-1929, acquired the right to the said decree. Thereafter Waman Krishna Gadgil sued out, execution of the said decree. 12-12-1929, acquired the right to the said decree. Thereafter Waman Krishna Gadgil sued out, execution of the said decree. The Court transferred the said decree to the Mamlatdar of Jamkhandi under S. 68 of the CPC for selling equity of redemption in the suit properties. In the execution sale held by the said Mamlatdar, Waman Krishna Gadgil the mortgagee, purchased the equity of redemption in the suit properties. The said sale was confirmed on 8-3-1938. Thus Waman Krishna Gadgil became the full owner of the suit properties. Thereafter he sold his right, title and interests in the suit properties in favour of Jagannath under a sale deed dt. 26-8-1939. , on the death of Jagannath, defendants 1 and 2 became the absolute owners of the suit properties. On 10-8-1953 defendants 1 and 2 executed a mortgage in favour of defendant 3 for a sum of Rs. 23,500. Because defendants 1 and 2 did not pay the amount due under the mortgage, defendants 3 to 5 instituted SCS. No. 20/59 against defendants 1 and 2 and some others for the sale of the properties in order to realise the mortgage debt. A preliminary decree was passed in the said suit, on 23-12-1960 and a final decree for sale was passed sometime thereafter. In the course of the proceedings in Spl. D. No. 2/63 instituted by defendants 3 to 5 for the sale of the properties mortgaged in their favour, the plaintiffs filed an application for stay of the same as already mentioned and that application was dismissed. In the aforesaid circumstances it was pleaded that the plaintiffs who had lost their equity of redemption in the suit properties by virtue of an execution sale pursuant to a money decree chained by Bindo govinda Pothe, the plaintiffs had no subsisting right in the suit properties. It was next pleaded by defendants 3 to 5 that the mortgage in favour of defendant 3 and the decree obtained by them on the foot of the said mortgage, were not hit by the rule of lis pendens because, (i) the proceedings commenced with CS. No. 200/47 on the file of the Jamkhandi. Court were collusive and (ii) that the title to thesuit properties were not directly and specifically in question in the said proceedings. It was also claimed that defendants 3 to 5 who were not parties to the proceedings commenced with CS. No. 200/47 on the file of the Jamkhandi. Court were collusive and (ii) that the title to thesuit properties were not directly and specifically in question in the said proceedings. It was also claimed that defendants 3 to 5 who were not parties to the proceedings commenced with CS. No. 200/47, were not bound by the same. Hence they submitted that the suit was liable to be dismissed. ( 4 ) ON the above pleadings, the trial Court among others, framed the following issues: 1. Whether the defendants 3 to 5 can challenge the title of the plaintiffs, to the suit lands? 2. Do plaintiffs prove that they are the owners of the suit lands? 3. Do they further prove that the mortgage in favour of defendants 3 to 5 dt. 10-8-1953 is hit by the doctrine of Us pendens, and that therefore, the decree obtained by defendants 3, 4 and 5 against defendants 1 and 2 in Spl. C. S. No. 20/59 is not binding on them? after trial the trial Court held in favour of the plaintiffs on all the issues and decreed the suit as prayed for directing defendants 3 to 5 to pay costs of the plaintiffs. Aggrieved by the decree of the trial Court, defendants 3 to 5 have filed this appeal. Sri S. C. Javali the learned Counsel for defendants 3 to 5, urged before us the very same contentions which had been raised before the court below. He contended that the plaintiffs were not entitled to institute the above suit because they were not the owners of the property and that the decree obtained by them in C. S. No. 200/47 was not binding on defendants 3 to 5. It is necessary to set out a few more details about the earlier proceedings referred to above in order to appreciate the rival contentions of the parties before us. ( 5 ) IT is not disputed that Krishnaji had mortgaged with possession the suit properties in favour of Waman Krishna Gadgil on 12-12-1929 and that Waman Krishna Gadgil got possession of the properties under the said mortgage. ( 5 ) IT is not disputed that Krishnaji had mortgaged with possession the suit properties in favour of Waman Krishna Gadgil on 12-12-1929 and that Waman Krishna Gadgil got possession of the properties under the said mortgage. It is also not disputed that one Bindo Govinda Pothe had secured a money diecree against Krishnaji and his sons earlier in C. S. No. 133/32 and that the Mamlatdar had pursuant to the directions of the court, sold in 1938 the right, title and interest of Krishnaji and his sons in the suit properties. In that sale held by the Mamlatdar, waman Krishna Gadgil was the auction purchaser. Thereafter ramachandra, father of plaintiffs 1 to 3, filed Civil Suit No. 200/47 in the Court of the Second Class Sub-Judge, Jamkhandi State against waman Krishna Gadgil, the mortgagee under the mortgage deed dated 12-12-1929, Jagannath who claimed to have acquired the right, title and interest of Waman Krishna Gadgil under the deed dt. 28-8-1938, plaintiffs 4 to 6 in the present suit and Srinivas, husband of plaintiff 7 in the present suit under S. 16 of the Act, for a decree directing Waman Krishna gadgil and Jagannath to render accounts in respect of the mortgage dt. 12-12-1929. Ext. 66 is a certified copy of the plaint in the said suit. A true translation of the prayer portion of the said plaint reads as follows:" Plainitff prays as follows : - accounts of suit mortgage (transaction) may be got rendered by defendants from the very beginning. If in future it is held that something is due, plaintiff will pay Court-fee thereon if necessary and prays for instalment. If the same is held to have been satisfied plaintiffs will pray later on for possession and mesne profis after paying Court-fee in respect of possession of land, leave may be granted to that effect. It is prayed that Court costs and other reliefs may be awarded. The suit of the plaintiff is as above. " ( 6 ) IN the course of the said plaint it was stated that the sale held by the mamlatdar pursuant to the money decree which had been obtained by bindo Govinda Pothe, was without jurisdiction, and, therefore void. It was further pleaded, that the plantiff was entitled to the equity of redemption and the reliefs available under the Act. Waman Krishna Gadgil and jagannath contested the above suit. It was further pleaded, that the plantiff was entitled to the equity of redemption and the reliefs available under the Act. Waman Krishna Gadgil and jagannath contested the above suit. The gist of the written statement filed by them is to be found in paragraph 3 of Ext. 77 which is a certified copy of the judgment dt. 26-8-1959 passed in C. S. No. 209/56 on the file of the joint Civil Judge, Jamkhandi. It may be mentioned here that the suit which was instituted in the Court of the Second Class Sub-Judge at Jamkhandi in C. S. No. 200/47, after the merger of Jamkhandi State with the province of Bombay, came to be numbered as C. S. No. 209/56 on the file of the Joint Civil Judge, Jamkhandi and it was disposed of by that Court. Waman Krishna Gadgil and Jagannath among other pleas raised by them in their written statement, pleaded that Waman Krishna Gadgil had acquired the mortgagee's right under the deed dt. 12-12-1929 and also the equity of redemption under the sale held by the Mamlatdar pursuant to the money decree obtained by Bindo Govinda Pothe and thus had become the full and absolute owner of the same, and that the validity of the execution sale held by the Mamlatdar could not be decided in the said suit which was for accounts under S. 16 of the Act. On the above pleadings, among others, the following issues were framed in the said suit :" (4) Whether the equity of redemption survives to the plaintiffs and defendants 3 to 6 after the auction sale in D. No. 366/36 and (4a) Whether the suit is not tenable in the present form as it requires the setting aside of the auction sale of equity of redemption. "the said suit was dismissed by the trial Court on 26-8-1957 as per Ext. 77. Against the said decree, the plaintiffs therein filed an appeal before the civil Judge, Sr. Dn. , Bijapur, in C. A. No. 267/59. In the course of the said appeal, the Civil Judge, Sr. Dn. formulated two questions for consideration, namely, (1) whether the sale of the property in favour of defendant 1 in D". No. 366/36 is a nullity? and (2) wheher the plaintiff is entitled to urge that ground? Dn. , Bijapur, in C. A. No. 267/59. In the course of the said appeal, the Civil Judge, Sr. Dn. formulated two questions for consideration, namely, (1) whether the sale of the property in favour of defendant 1 in D". No. 366/36 is a nullity? and (2) wheher the plaintiff is entitled to urge that ground? On a consideration of the submission made before him, he was of the opinion that the sale held by the Mamiatdar pursuant to proceedings in D. No. 366/36 was a nullity and that the title to the equity of redemption was not acquired by defendant 1 and that the plaintiffs continued to be the owners of the equity of redemption. In view of the above findings, the decree passed by the trial Court was set aside and the case was remanded to the trial Court for fresh disposal. While doing so, he held that in taking the accounts the plaintiffs should be held responsible for the payment of the decretal amount due under the money decree which had been obtained by Bindo Govinda Pothe also Ext. 75d is the certified copy of the judgment of the Civil Judge, Sr. Dn. , in the appeal which was disposed of on 31-10-1960. After remand, the case was disposed of by the trial Court by its judgment dt. 27-12-1961 (Ext. 117) in C. S. No. 209/56 on the file of the Civil Judge, Jr. Dn. , Jamkhandi. By the said judgment, the trial Court made a preliminary decree for redemption of the mortgage dt. 12-12-1929. It held that the mortgage stood discharged and extinguished and the plaintiffs were entitled to take possession of the properties free from the said mortgage. ( 7 ) IT however, "ordered pursuant to the direction contained in the judgment of the appellate Court that the plaintiffs should deposit the decretal amount due and payable under the money decree which had been obtained by Bindo Govinda Pothe before taking possession of the properties. The plaintiffs having deposited a sum of Rs. 427 which was the amount due and payable under the said money decree, a final decree was passed on 11-4-1962, vide Ext. 71d. On 14th and 15th of April. 1962, the plaintiffs were put in possession of the suit properties as can be gathered from the relevant R. R. extracts which are marked as exhibits in this case. 427 which was the amount due and payable under the said money decree, a final decree was passed on 11-4-1962, vide Ext. 71d. On 14th and 15th of April. 1962, the plaintiffs were put in possession of the suit properties as can be gathered from the relevant R. R. extracts which are marked as exhibits in this case. From the foregoing it is clear that the suit which was commenced in C. S. No. 200/47 on the file of the jamkhandi Court ultimately terminated on 15-4-1962. The question for consideration in this appeal is whether the mortgage executed on 10-8-1953 by defendants 1 and 2 against whom C. S. No. 200/47 had been filed, in favour of defendant 3 under whom defendants 4 and 5 also claim, would affect the rights of the plaintiffs in the final decree which was ultimately passed in the proceedings commenced by. them in C. S. No. 200 (47. The answer to his question depends upon the provisions of S. 52 of the Transfer of Property Act, which reads :-- the doctrine of Us pendens as adumbrated in S. 52 of the T. P. Act is based on considerations of public policy. If the said doctrine were to be held inapplicable to judicial proceedings, actions commenced by parties in respect of their rights in immoveable properties would become interminable. ( 8 ) IN the absence of the said rule it would be possible for a person who is a party to a judicial proceeding to transfer the property in question to a stranger to the proceeding during the pendency of the proceeding so that the property, can be kept out of the reach of the successful party in the proceeding. If such a transfer is allowed to take place then the successful party will have to again start proceedings afresh against the transferee pendente lite because the decree obtained by him in the proceedings already instituted by him would not be binding on the stranger. ( 9 ) IT is with the object of preventing such transfers pendente lite which would make the decree and orders passed by Courts ineffective, the doctrine of Us pendens was evolved and came to be applied to the judicial proceedings. The doctrine of lis pendens was explained by Sri Wm. Grant in the year 1805 in the Bishop of Winchester v. Paine 32 E. R. 1062. The doctrine of lis pendens was explained by Sri Wm. Grant in the year 1805 in the Bishop of Winchester v. Paine 32 E. R. 1062. as follows :" Ordinarily, it is true, the decree of the Court binds only the parties to the suit. But he, who purchases during the pendency of the suit, is bound by the decree, that may be made against the person, from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title, so acquired. As to them it is as if no such title existed. Otherwise, suits would be indeterminable; or which be in the pleasure of one party, at what period the suit should be determined. The rule may sometime operate, with hardship upon those, who purchase without actual notice; yet general convenience requires its adoption; and a mortgage, taken pendente lite, cannot be exempted from its operation. " ( 10 ) THE requirements of S. 52 of the T. P. Act are: (i) pendency of a suit or proceeding before a competent Court; (ii) absence of collusion among the parties; (iii) the existence of a question directly and specifically relating to the right to immoveable property; (iv) the party other than the party who has transferred his right pendente lite having a right in the ultimate decree or order passed in the proceeding; and (v) the decree or order is one which may be made in the said suit or proceeding. Sri S. C. Javali, the learned Counsel for defedants 3 to 5, contended that the suit that was instituted in C. S. No. 200/47 was one for mere accounts, and, therefore, it could not be said that right to immoveable property was directly and specifically in question, and that the proceedings in the said suit were collusive, and, therefore, the mortgages which had been obtained by defendants 3 to 5 from defendants 1 and 2, was not hit by S. 52 of the T. P. Act. In support of the first of the above two contentions, sri Javali drew our attention to the provisions of S. 16 of the act which is in Marathi. The said provision is in pan materia with S. 15d of the Dekkhan Agriculurists' Relief Act (Bombay Act 17 of 1879 ). In support of the first of the above two contentions, sri Javali drew our attention to the provisions of S. 16 of the act which is in Marathi. The said provision is in pan materia with S. 15d of the Dekkhan Agriculurists' Relief Act (Bombay Act 17 of 1879 ). S. 16 of the Act when translated into English reads as follows :" 16 (1) Any argiculturist whose property is mortgaged may sue for an account of the amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount. (2) When any such suit is brought, the amount (if any) remaining unpaid shall be determined under the same rules as would be applicable under this Act if the mortgagee had sued for the recovery of the debt. (3) At any time before the decree in the suit is signed, the plaintiff may apply to the Court to pass a decree for the redemption of the mortgage, or the mortgagee, if he would then have been entitled to sue for foreclosure or sale, may apply to the Court to pass a decree for foreclosure or sale (as the case may be), instead of a decree merely declaring the amount remaining unpaid, and the Court may, if it thinks fit, grant the application. (4) The provisions of S. 14 shall apply to any decree passed under sub-section (3 ). "sec. 14 of the Act is similar to S. 15b of the Dekkhan Agriculturists relief Act. It was argued that until an application is filed under S. 16 (3) of the act requesting the Court to pass a decree for redemption of the mortgage, the right to the immoveable property would not be directly or specifically in question and in this case, according to Sri Javali, such an application must have been filed only after the case was remanded by the appellate Court by its judgment dt. 31-10-1960 by which time defendants 1 and 2 had already mortgaged the properties in favour of defendant 3 under the mortgage deed dt'. 10-8-1953. We cannot accede to the said contention in the circumstances of this case and the law bearing on the point. 31-10-1960 by which time defendants 1 and 2 had already mortgaged the properties in favour of defendant 3 under the mortgage deed dt'. 10-8-1953. We cannot accede to the said contention in the circumstances of this case and the law bearing on the point. As already stated by the time the suit was instituted in the year 1947 under S. 16 of the Act by Ramachandra, father of plaintiffs 1 to 3, waman Krishna Gadgil had been declared as the auction purchaser by the Mamlatdar who held the sale pursuant to the money decree obtained by Bindo Govinda Pothe and in the plaint in that suit, it was specifically pleaded by the plaintiff that the said sale held by the Mamlatdar had not had the effect of transferring the equity of redemption to the auction purchaser. Defendants 1 and 2 in that suit who were the pre-decessors-in- interest of defendants 1 and 2 in this suiit, specifically pleaded in the writlen statement that the said suit was not maintainable because the plaintiff had lost the right to equity of redemption by virtue of the sale held by the Mamlatdar. If on that question defendants 1 and 2 had succeeded in that case, the suit was liable to be dismissed. But because the appellate Court came to the conclusion that the said sale was a nullity, and was, therefore, void and ineffective, the suit was decreed. It is no doubt true, according to the scheme of S. 16 of the Act, an agriculturist would be entitled to institute a suit for accounts from the mortgagee under sub-sec. (1) of S. 16 of the Act and that when such a suit is filed, under sub-sec. (2) the mortgage amount, if any, remaining unpaid has to be determined in the manner as would be applicable under the Act if the mortgagee had sued for the recovery of the debt and Before a decree in the said suit is signed, it is open to the agriculturist who is the plaintiff to apply to the Court to pass a decree for redemption of the mortgage instead of merely making a decree declaring the amount remaining unpaid. In the circumstances of this case and having regard to the allegations in the plaint and the written statement in C. S. No. 200/47, we are of the opinion that the title to the equity of redemption was directly and specifically in question even on the date when the suit was instituted for accounts for, as already stated, the suit was liable to be dismissed if the court had come to the conclusion that the auction sale held by the Mamlatdar was valid. Secondly, the application that is required to be made under sub-sec. (3) of S. 16 of the Act is only a step in the proceedings which was commenced in the year 1947. It is difficult to agree with the submission made by Sri Javali that a question relating to the title of the suit properties directly and specifically arose for the "first time after the case was remanded by the appellate Court and just before the preliminary decree was passed in the suit. The proceedings commenced under sub- sec. (1) of S. 16 of the Act ending with a decree for redemption which is passed under sub-sec. (3) should be considered as. a single proceeding and the ultimate relief granted by the Court under sub-sec. (3) should be held to relate back to the date on which the litigation was commenced and all transactions entered into in respect of the immoveable property by persons who were parties to the said suit after the commencement of the litigation must be held to be subject to the final result of the litigation. S. 52 of the T. P. Act clearly lays down that the transactions entered into pendente lite by any of the parties to the proceeding would not effect rights of any other party under the decree or order which may be made therein. In order to find out whether a decree or order is one " which may may be made " in a suit or proceeding, the test that should be applied is whether the decree or order which is ultimately passed is entirely alien1 to the issue raised between the parties or it has a bearing though not directly on the relief claimed; the nature of the case; character of the contention, and scope of the suit. In the instant case, the question relating to title to the suit properties was directly and specifically in issue even before the stage at which an application could be made under sub-sec. (3) of S. 16 of the Act, because even for the granting of a decree for mere accounts against the mortgagee, it was necessary for the mortgagor to establish that he had a subsisting interest in the equity of redemption. It was next argued by Sri Javali that in a suit for accounts filed under S. 16 of the Act, the Civil Judge, Sr. Dn. , who allowed C. A. No. 267/ 69 committed an error in declaring that the sale held by the Mamlatdar was a nullity. In other words, what was contended on behalf of defendants 1 and. 2 was that the said Court should have held that the sale held by the mamlatdar was only voidable and not void obinitio and that in the absence of any specific prayer for cancellation of the said sale, the Court could not have granted any relief to the plaintiff in C. S. No. 200/47. On the above basis, it was argued that the ultimate decision in the previous proceeding was not binding on defendants 3 to 5. This contention again is an untenable one. As S. 52 of the T. P. Act stands it appears to us that it is immaterial whether the decree passed in the earlier proceeding is right or wrong. The Court while applying S. 52 of the T. P. Act to a case is not called upon the decide whether the decision in the former case is correct or incorrect. That appears to be beyond the scope of its enquiry. Unless it is shown that the Court before which the former proceeding was pending, was incompetent to decide the said case, a decree or order passed by that Court must be given due effect notwithstanding the fact that during the pendency of the said proceeding, a party to the said proceeding has transferred his interest in the property in favour of a stranger. Relying upon a decision of the High Court of Bombay in Krishna Vitnak Mahar v. Shankar Krishna Gandhi AIR. 1939 Bom. 419. Relying upon a decision of the High Court of Bombay in Krishna Vitnak Mahar v. Shankar Krishna Gandhi AIR. 1939 Bom. 419. , it was argued by Sri Jayali that a prayer for setting aside an equity of redempion fell outside the scope of a suit for accounts of a mortgage under S. 15d of the Dekkhan Agriculturists relief Act and S. 16 of the Act. That decision is distinguishable from the present case on two grounds. The finding of the Civil Judge, Sr. Dn. , in c. A. No. 267/69 was that tke sale held by the Mamlatdar was a nullity and if it was a nullity, no question of setting aside the same would arise. A transaction which is a nullity can be ignored by a party and he can seek the reliefs to which he is entitled to without getting the transaction cancelled. ( 11 ) THIS view of ours receives support from a decision of the Supreme court in Ramrao Janikiram Kadam v. State of Bombay AIR. 1963 SC. 827. in which it was held that where there was only a purported sale which did not pass title, it was open to a party to file a suit for recovery of possession ignoring such a sale. Secondly, even if there is an error committed by the Civil judge while deciding the appeal in treating a transaction which was voidable as void, that is only an error involved in that decision which did not affect the competency of that Court to decide the case, for it was opera to that Court to decide the above question in exercise of its undoubted jurisdiction. Sri Javali next relied upon the decision in Worsley v. The Earl of scarborough 26 E. R, 1025. in support of his submission that in a suit for accounts it was not open to decide the question relating to title. Sri Javali next relied upon the decision in Worsley v. The Earl of scarborough 26 E. R, 1025. in support of his submission that in a suit for accounts it was not open to decide the question relating to title. The relevant part of the decision reads as follows ;:" Thirdly, no case has gone so far and it would be very inconvenient, if where money is secured upon an estate, and there is a question depending in this Court upon the right of or about that money but no question relating to the estate, upon which it is secured, but is wholly a collateral matter, that a purchaser of the estate pending that suit should be affected with notice by such implication as the law creates by the pendency of a suit. " ( 12 ) WE are of the opinion that the above decision is beside the point. We are not considering in this case the question relating to the nature of the property or the estate. Such a question would arise only when the nature of the mortgaged property, as for example, whether the estate in question is a limited estate or is a watan property or ryotwari property arises for consideration. In the instant case, the nature of the estate is the same whether it is in the hands of the mortgagor or mortgagee. There is no change in the character of the estate. But the question for decision in the earlier case was whether the mortgage debt had been discharged or not or whether the mortgagor had a right to redeem or not. Both these questions which relate to mortgagor's title to the properties arose directly and specifically for decision in the previous proceedings. They cannot be considered as collateral matters. Hence the above decision is not applicable to the facts of the present case. We are, therefore of the opinion that the question relating to the right to the suit immoveable properties was direcetly and specifically involved in the previous proceedings. ( 13 ) THE next branch of the submission made by Sri Javali relates to the question whether the procaednigs commenced with C. S. No. 200/47 were collusive in nature. We are, therefore of the opinion that the question relating to the right to the suit immoveable properties was direcetly and specifically involved in the previous proceedings. ( 13 ) THE next branch of the submission made by Sri Javali relates to the question whether the procaednigs commenced with C. S. No. 200/47 were collusive in nature. It was argued that even though defendants 1 and 2 contested the suit in the trial Court before it Was dismissed on 26-8-1959, during the pendency of the appeal in C. A. No. 267159 they chose to remain absent and allowed the judgment to be passed in appeal ex-parte, and that even after the matter was remanded to the trial Court, defendants 1 and 2 did not take interest in the said proceedings. It was, therefore, contended that defendants 1 and 2 must be held to have colluded with the plaintiffs in suffering the ultimate decree passed in the said suit. Collusion in a judicial proceeding as explained by the Supreme Court in Nagubai Ammal v, B. Shama Rao AIR. 1956 SC. 593. is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain a decision of a judicial tribunal for some sinister purpose. In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. In the instant case, apart from saying that defendants 1 and 2 remained absent when the appeal in C. A. No. 267/59 was heard, no other evidence is forthcoming regarding their collusion with the plaintiffs. Even when there was an agreement between the plaintiff and the defendant that the defendant would not defend a suit if the plaintiff brought one against him, in the absence of any other evidence the Supreme Court held in Rupchand Gupta v. Raghuvanshi (P) Ltd. AIR. 1964 SC, 1889. that there was no collusion between the plaintiff and the defendant. The facts of that case are these: A landlord brought a suit against a lessee for ejectment after serving a valid notice to quit but without impleading the sub-lessee as defendant. 1964 SC, 1889. that there was no collusion between the plaintiff and the defendant. The facts of that case are these: A landlord brought a suit against a lessee for ejectment after serving a valid notice to quit but without impleading the sub-lessee as defendant. The lessee did not contest the suit pursuant to an agreement with the landlord-plaintiff and an ex-parte decree was passed. The sublessee thereupon brought a suit against the landlord and the lessee for a declaration that he was not bound by the decree which was obtained by collusion between the defendants in order to injure the plaintiff and to evict him from the premises without a decree being passed against him. The Supreme Court held that in such a case, there was no collusion between the landlord and the lessee even though the result of the earlier proceeding had acted harshly on the sub-lessee. The Supreme Court observed that the mere fact that the defendant agreed with the plaintiff that if a suit was brought, he would not defend, would not necessarily prove collusion and that it was only if the said agreement was entered into improperly in the sense that a dishonest purpose was intended to be achieved, it could be said that there was collusion. In the circumstances of this case, we are satisfied that defendants 3 to 5 have not been able to establish that there was collusion between the plaintiffs and defendants 1 and 2 in the earlier proceedings. ( 14 ) IT was next contended by Sri Javali that the judgments land decrees passed in C. S. No. 209/56 (formerly C. S. No. 200/47) on the file of the Civil judge, Jr: Dn. , Jamkhandi and C. A. No. 267/59 on the file of the Civil judge, Sr. Dn. , were not admissible in evidence as defendants 3 to 5 were not parties to those proceedings. It was urged by him that we should therefore, hold that there is no evidence in this case regarding the final result of the proceedings commenced with C. S. No. 200/47. The acceptance of the above submission made by Sri Javali would defeat the very purpose for which S. 52 of the T. P. Act is enacted. It was urged by him that we should therefore, hold that there is no evidence in this case regarding the final result of the proceedings commenced with C. S. No. 200/47. The acceptance of the above submission made by Sri Javali would defeat the very purpose for which S. 52 of the T. P. Act is enacted. Defendants 3 to 5 even though they may be the purchasers in a Court sale of the right, title and interest of defendants 1 and 2 of the properties mortgaged in their favour under mortgage deed dt. 10-8-1953, have to be considered as persons claiming under defendants 1 to 3 who were parties to the (earlier proceedings. The decision in those proceedings On issues which directly and substantially arose for consideration, would be binding on representatives in intrest of the parties to the said suit by virtue of the rule of res judicata. ( 15 ) THE doctrine of lis pendens is only one aspect of the general rule of res judicata. Both of them rest on the necessity of having finality in litigation. It appears to us in this case that since defendants 3 to 5 are claiming properties under defendants 1 and. 2, who are parties to the earlier proceedings, the judgment and decree passed in those proceedings are admissible in this case under S. 40 of the Indian Evidence Act. We also feel that those documents are admissible under S. 43 of. the Indian Evidence act, which makes a judgment or a decree in an earlier proceeding admissible when the existence of the judgment or the decree itself is a fact in issue. In view of the language of Sec. 52 of the T. P. Act, we do not find any substance in this submission also: ( 16 ) IT was lastly contended by Sri Javali that the plaintiffs should fail in this ease because they had not adduced any evidence regarding their title to the suit properties apart from the judgments and decrees in the previous proceedings. He wanted us to read issue No. 2 framed in this case, namely, do plaintiffs prove that they are owners of the suit lands, independently of issue No. 3, namely, do they prove that the mortgage in favour of defendants 3 to 5 dt. 10-8-1953 is hit by the doctrine of lis pendens, and. He wanted us to read issue No. 2 framed in this case, namely, do plaintiffs prove that they are owners of the suit lands, independently of issue No. 3, namely, do they prove that the mortgage in favour of defendants 3 to 5 dt. 10-8-1953 is hit by the doctrine of lis pendens, and. therefore, the decree obtained by defendants 3, 4 and 5 aganist defendants 1 and 2 in C. S. No. 20/59, is not binding on them. We feel that it is not possible to do so. If the plaintiffs are right) in their contention that the mortgage in favour of defendants 3 to 5 and the proceedings commenced on the foot of the said mortgage do not affect their right to the suit properties recognised by the final decree passed in the proceedings commenced with C. S. No. 200/47, it would be unnecessary for them to establish any other fact in this case, for in the earlier proceeding it was held that they had equity of redemption and that the mortgage had been discharged and as a consequence of the above finding, the Court had passed a decree for possession. The said decree is binding on defendants 3, 4 and 5. The plaintiffs were not, therefore, called upon to adduce any other evidence on the question of title for such an enquiry is unnecessary in the circumstances of the case. After carefully considering the various submissions made by Sri javali, we have come to the conclusion that there its no merit in this appeal. This appeal, therefore, fails and it is dismissed with costs. --- *** --- .