JUDGMENT - G.N. VAIDYA, J.:---This case illustrates how even after obtaining a decree for partition in 1946 in their favour, the appellants are driven from Court to Court to establish their right to get possession and are still without possession of the suit land till today and perhaps may have to wait for a decade if things go at this rate in our legal system. 2. Appellants Nos. 1 and 3 were the sons of the original appellant No. 3 Mandodarabai Deshmukh who is now represented by appellants Nos. 1 and 2 and her husband Ramrao Narayan Deshmukh, respondent No. 3, who also died during pendency of the above appeal and is now represented by appellants Nos. 1 and 2. 3. Ramrao had a brother Tryambak Narayan who died on April 19, 1939. There was an award to Tryambak bearing No. 427 of 1931 in favour of the Lohare Co-operative Credit Society. In execution of the said award the suit property consisting of Survey No. 604 measuring 15 acres assessed at Rs. 39-81, situated at Mauja Lohare, Taluka Pachora was sold to the father of the plaintiffs, respondents Nos. 1 and 2 in an auction held by the Special Recovery Officer under the Bombay Co-operative Societies Act on October 25, 1938. A sale certificate, produced at Exh. 50 on record, was issued in respect of the sale on January 8, 1949 as the sale was not confirmed till December 29, 1948. The said property was also put in possession of the father of the plaintiffs on January 31, 1949 and since then plaintiffs, respondents Nos. 1 and 2 and their predecessor, father Dhanalal were cultivating the field as owners thereof. The plaintiffs succeeded to the possession and title of the property after the death of Dhanalal. 4. On March 24, 1964, the plaintiffs received a notice from the Circle Inspector for partitioning of the suit property and then the plaintiffs came to know that the notice was issued in execution of a decree for partition through the Collector. The final decree for partition was passed on October 31, 1946 in Special Suit No. 98 of 1943, which was pending while the auction was being held. By the partition decree, defendants Nos. 1 and 2 (appellants Nos. 1 and 2) were entitled to claim half share jointly in the property mentioned in that decree including the suit property. 5. The final decree for partition was passed on October 31, 1946 in Special Suit No. 98 of 1943, which was pending while the auction was being held. By the partition decree, defendants Nos. 1 and 2 (appellants Nos. 1 and 2) were entitled to claim half share jointly in the property mentioned in that decree including the suit property. 5. The plaintiffs, therefore, filed on April 22, 1964 a suit against the said defendants Nos. 1 and 2, defendant No. 3, Ramrao and defendant No. 4 Mandodarabai for declaration and injunction restraining defendants Nos. 1 and 2 for partitioning the suit land, Survey No. 604, alleging that the partition decree was a collusive decree intended to defeat the award passed against Tryambak, that defendants Nos. 1 and 2 purposely kept quiet during all the years and were, therefore, estopped from claiming the suit property on the basis of the decree which was passed on October 31, 1946. The plaintiffs, therefore prayed for injunction against defendants Nos. 1 and 2 restraining them from partitioning the property which was in the plaintiffs possession, submitting that although the auction sale took place during pendency of Special Suit No. 98 of 1943, the doctrine of lis pendens did not apply to the sale as the partition suit filed by the appellants was collusive and it was filed at the instigation of defendant No. 3 who continued to be the Karta of the family; and the father of the plaintiffs had bona fide purchased the suit property in auction for value without notice. They also contended that they became owners by adverse possession. 6. The suit was resisted by defendants Nos. 1, 2 and 4. Mainly relying on the doctrine of lis pendens they contended that the auction sale held on October 25, 1948 was not binding on the said defendants. They also contended that the award was not legal because it was not for the debt which was binding on the family and in any event, no charge was created on the property and that after the death of Trambak the suit property was not liable to be sold in execution of that award. They said that the auction sale took place during their minority and after defendant No. 1, attained majority, defendants Nos. They said that the auction sale took place during their minority and after defendant No. 1, attained majority, defendants Nos. 1 and 2 took steps for getting the property partitioned by applying in 1959 in the Court of Civil Judge, Jalgaon for sending the Collector for getting their property partitioned as per their prayers. They were, therefore entitled to recover their share in the suit property as per terms of the partition and the plaintiffs were not entitled to any of the reliefs against them. 7. The learned Civil Judge framed a number of issues having regard to these contentions. On a careful consideration of the oral and documentary evidence and the law bearing on the most important issue in the matter relating to the applicability of doctrine of lis pendens and particularly the decisions in (Bhupati Banarji v. Bon Behary Roy)1, A.I.R. 1941 Cal. 436 which was cited before him and which was relied on by the plaintiffs and in (Basappa Budappa v. Bhiman Gowda)2, A.I.R. 1928 Bom. 65 which was relied upon by the defendants, he came to the conclusion that the auction sale was hit by the doctrine of lis pendens; and therefore, the transfer of the suit property in favour of Dhanalal could not defier the right of defendants Nos. 1 and 2. By his judgment and decree of November 26, 1965 the learned Civil Judge dismissed the plaintiffs suit with costs. 8. The plaintiffs carried an appeal against the said judgement and decree. The learned Assistant Judge, Jalgaon by his judgement dated October 15, 1966 reversed the finding of the trial Court, set aside the decree of the trial Court and passed a decree in favour of the plaintiffs and restrained the defendants from taking possession of the lands from the plaintiffs, in execution of the decree passed in the present Special Regular Civil Suit No. 98 of 1943. The said decree passed by the learned Extra Assistant Judge is challenged in the above second appeal filed by defendants Nos. 1, 2 and 4. As already stated above, respondent No. 3 died during the pendency of above appeal and is now represented by appellants Nos. 1 and 2 her sons. 9. Mr. The said decree passed by the learned Extra Assistant Judge is challenged in the above second appeal filed by defendants Nos. 1, 2 and 4. As already stated above, respondent No. 3 died during the pendency of above appeal and is now represented by appellants Nos. 1 and 2 her sons. 9. Mr. Kotwal, the learned Counsel appearing for the appellants submitted that the decision of the learned Extra Assistant Judge is contrary to law in as much as the auction sale held on October 25, 1948 in execution of the award was manifestly hit by the provisions of section 52 of the Transfer of Property Act or the general doctrine of lis pendens. This submission must be accepted as it is supported by several authorities including the decision of the Supreme Court in (Samarendra Nath Sinha v. Krishna Kumar Nag)3, A.I.R. 1967 S.C. 1440 where it is laid down :--- "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 pendents applies to such alienations." The same principle is further reiterated in (Kedarnath v. Sheonarain)4, A.I.R. 1970 S.C. 1717. 10. Mr. Gole, the learned Counsel appearing for the plaintiffs submitted that as Tryambakrao Narayan was not a party to the partition suit, the doctrine of lis pendens cannot apply as what was sold at the auction was the right, title and interest in the family properties of the deceased Tryambakrao. The argument of Mr. Gole must be rejected. Although Tryambakrao being dead was not a party to the partition suit his survivors were the defendants and as there was no partition between Tryambakrao and Ramrao, the property must have devolved on defendant No. 3 as survivor and it is, therefore, difficult to see what exactly could be sold to the father of the plaintiffs, even assuming that there was some interest of the deceased. But the auction sale was held when it was an undivided interest in the joint family property of the defendants in which there was unity of possession and enjoyment and unity of interest and community of interest till the actual partition by metes and bounds was made under the decree for partition. But the auction sale was held when it was an undivided interest in the joint family property of the defendants in which there was unity of possession and enjoyment and unity of interest and community of interest till the actual partition by metes and bounds was made under the decree for partition. The subject matter of the suit for partition shows that it included the property which was sold in the auction; and therefore, it must be held that sale amounted to dealing with the property which was the subject matter of the pending litigation. The auction sale was patently hit by the doctrine of lis pendens and the sale cannot prevent execution of the decree in favour of defendants Nos. 1 and 2. It is unnecessary to discuss the somewhat confused reasoning given by the learned Civil Judge with regard to the applicability of section 52 because of the above Supreme Court decisions. 11. It was next contended by Mr. Gole that the findings of the two courts below that the partition suit was not collusive and the debt of Trayambakrao was not binding on the defendant Nos. 1, 2 or 3 personally are not legal. Mr. Gole submitted that defendants Nos. 1 and 2 being minors the suit was filed at the instigation of their father defendant No. 3 The two courts considered the oral and documentary evidence and arrive at the finding that there was no substance in the contentions. Even though there was a collusion, we must see that the suit was there and litigation was pending and it ended in a decree. The auction sale would be hit by lis pendens which makes no exception to the collusive suits if they were pending. 12. Another contention raised by Mr. Gole was the plaintiffs had perfected title by adverse possession since the year 1948 when their father was put in possession. Mr. Gole submitted that the learned Assistant Judge on careful consideration of findings on record came to the conclusion that there was adverse possession of the plaintiffs and that defendants and their predecessor were aware of this. That was so because the learned Judge came to the conclusion that lis pendens does not apply to an auction sale but where lis pendens applies as in the present case, it is not open to the plaintiffs to contend that they became owners by adverse possession. That was so because the learned Judge came to the conclusion that lis pendens does not apply to an auction sale but where lis pendens applies as in the present case, it is not open to the plaintiffs to contend that they became owners by adverse possession. Their possession and title were subject to lis pendens and there cannot be adverse possession against the law of lis pendens as long as the partition decree was not satisfied and could be executed. 13. Another worthless contention raised on behalf of the plaintiffs was that the application made by defendants Nos. 1 and 2 for transferring the decree as late as April 28, 1959 in the Court of Civil Judge, Senior Division, Jalgaon was barred by limitation and therefore, execution of the decree by the Collector was also barred by limitation Mr. Gole was not in a position to point out under which article of section such an application would be barred. It is well settled that an application for transferring the papers to the Court under section 54 is not an application for execution because the Court has no power to execute the decree when the decree was ordered to be executed by the Collector. There cannot, therefore be any execution proceeding before the Court in case of such a decree. See (Ningappa Balappa and others v. Abashkhan Gouskhan)5, A.I.R. 1956 Bom. 345. Hence the application made by defendants Nos. 1 and 2 before the Civil Court cannot be said to be barred by any provisions of the Limitation Act. 14. The last contention raised by Mr. Gole was that there could be no partition decree as there was no dispute proceeding the demand for partition between defendants Nos. 1 and 2 on the one hand and their father; and therefore, the doctrine of lis pendens would not apply. The argument must only be stated to be rejected because it ignores the fundamental notion of partition in Hindu Law which does not require any demand for partition before the partition suit was filed. The notion of lis pendens is based on the principle of ut lite pendents ninil innoveture. The principle applies to all suits including the above partition suit. 15. The notion of lis pendens is based on the principle of ut lite pendents ninil innoveture. The principle applies to all suits including the above partition suit. 15. As no other point was urged or could be urged and in view of the other findings of the two courts, the judgement and decree passed by the learned Extra Assistant Judge, Jalgaon on October 15, 1966 are set aside and the judgement and decree passed by the learned II Joint Civil Judge, Junior Division, Jalgaon on November 26, 1956 are restored, and the plaintiffs suit is dismissed with costs through out. The second appeal is allowed. -----