K.M.Sr.K. Lankaram vs O.K.S. Sundaragopala Aiyar And Ors. on 3 September, 1940
846 and Mahadeo Saran Sahu v. Thakur Prasad Singh (1910) 14n C.W.N. 677. This would be particularly so in cases where the attachment remains undisputed by a judgment-debtor or any other person. But if an attachment can be said to give rise to a lis at all, it could only be in respect of the liability of the property to be sold in execution and for nothing else. This is not the point that arises for consideration in this case. The question here is whether a lis can be said to have come into existence simply because the judgment-debtors made an application under Order 21, Rule 83, Civil Procedure Code and if so what that lis was. The only order that could be passed on that application was either to grant time to the judgment-debtor for the purposes stated in that rule, or not so to do. The Court could not grant permission to the judgment-debtors to mortgage, sell or lease the attached property free of any subsequent encumbrance, which they might have created after the attachment and in the absence of any such order, it would be incorrect for the appellant to contend that he purchased the property free of the encumbrance created by the judgment-debtors in favour of the plaintiffs. Since the essence ;of Section 52 of the Transfer of Property Act is that a transaction entered into during the pendency of a suit or proceeding cannot prejudice the interests of a party to the suit or proceedig who is not a party to the transaction, let us ascertain whether the mortgage to the plaintiffs affected the rights of 'any other party' within the meaning of the expression used in that section. It has been already held by us that the sale by the judgment-debtors in favour of the appellant's father - in spite of a certificate and subsequent confirmation by the Court - was of a private nature. We are unable to see how the appellant's father can be said to be standing in the decree-holder's shoes. It may be that the necessity for a certificate and subsequent confirmation arose on account of the attachment made at the decree-holder instance; but this would not make the private Vendee a representative of the decree-holder. The contention, therefore, that the appellant's lather was the decree-holder's representative is-untenable and both the plaintiffs and the appellant's father must be held to be standing in the shoes of the judgment-debtors alone who mortgaged the property first to the former and sold it subsequently t0 the latter. If that be the correct position and we take it to be so, Section 52 of the Transfer of Property Act would have no application to the facts of this case. The alienation mentioned in Section 52 must be such as 'to affect the rights of any other party thereto' and not the rights of the person who dealt with the property or of those who stand in his Shoes. The judgment-debtors are, it cannot be denied, bound, by the mortgage which they created in the plaintiffs favour. Having 'mortgaged the property to the plaintiffs, it was no longer in their power to derogate from the grant which had been made to the plaintiffs and they could not, in the circumstances, alienate anything more than the equity of redemption. The decree-holder's right in execution was only to bring the property to sale and had the property been sold through Court, the purchaser would have bought the judgment-debtors' right, title and interest as it existed on the date of the attachment regardless of any alienations that might have been made during the continuance of the attachment. But this would be so in virtue of the provisions contained in Section 64 of the Civil Procedure Code and not on account of any doctrine of lis pendens. The contention that every alienation by a judgment-debtor during the pendency of an execution application would be hit by the.