Full Judgment
Charles Sargent, C.J.
1. In this case one Apaya mortgaged four shops to plaintiff's father on the 15th August 1864-the bond not being registered. Apaya's father subsequently obtained a decree declaring that two of the shops were not liable to the mortgage, and in 1869 plaintiffs father sued on the mortgage-bond, and also prayed that certain land not included in the mortgage might be held liable for the debt in lieu of the two shops. A decree was passed on the 29th November, 1869, by which Rs. 1,291 and interest from date of plaint were ordered to be paid 'on the liability of the land in the plaint mentioned.' On the 18th August, 1876, Apaya sold a portion of this land to defendant, who obtained possession from Apaya without notice of the plaintiff's decrees. This sale-deed was registered.
2. The Acting Judge held, on the authority of Kanu Khandu v. Krishna Bhulaji Shet 5 Bom. H.C. R 147, A.C.J that the defendant's deed of sale was entitled to preference. In that case the ordinary decree in a suit on a mortgage-bond had been passed for the recovery of the money from the mortgaged property; but it was held that the decree could not have the effect of possession under the mortgage; and that a subsequent purchaser, without notice of the decree or mortgage, had a preferable right, and obtained a title free from the mortgage lien. It has, however, been contended before us that, although a decree may not, of itself, be notice, there was, in the present one, a lis pendens until execution of the decree of 1869. That decree, directing that the plaintiff should recover the mortgage-debt 'on the liability of the land mentioned in the plaint,' is virtually, although not in form, the same as is made in every suit to enforce an existing mortgage. The only difference being that the decree in this case would have to be executed by attachment and sale. In Sugden on Vendors and Purchasers, p. 760, it is said: 'Decrees are not notice to a purchaser, but the lis pendens is not terminated where the decree does not put an end to the suit.' Butin Kinsman v. Kinsman 1 R. & M., 622 Lord Lyndhurst says: 'In order that there may be a litis pendentia there must be a continuance of litis contestatio,' and the case of a decree for account in an administration or creditors' suit is an illustration of this proposition. In Higgins v. Shaw 2 Dr & W 361 Lord St. Leonards says: 'A decree for account does not put an end to a suit; it is a continuance of the litigation, and, consequently, the suit operates as notice to all the purchasers.' Here, however, the decree was a final one; the litigation between the parties, which had for its subject the liability of other property than what was contained in the mortgage-bond for the payment of the mortgage, was terminated by the decree, which only remained to be executed against that property. In other words, the litis contestatio had ceased.
3. The Cases cited for the plaintiff are not in point. In the Privy Council decision in Bazayet Hossein v. Dooli Chund I.L.R., 4 Cal, 409 it is not plain whether the mortgage-bond was executed after the decree in the suit instituted by the widow Tayyuban; but, assuming it to have been so, the decree directed an account to be taken, which brings it within the class of cases above mentioned. In Ravji Narayan v. Krishnaji Lakshman 11 Bom. H.C. R139 the plaintiff, purchased under a common money-decree, and, therefore, subject to the previous mortgage and decree, and the question whether there was litis pendentia after decree did not arise. But, apart from the above considerations, there is in the present case the further circumstance that nothing was done in the suit after the decree and during the seven years which elapsed between it and the date of defendant's purchase in 1876. In Kinsman v. Kinsman 1 R& M., 622 Lord Lyndhurst says: 'Without going so far as to say with Lord Bacon that there must be a constant and vigorous prosecution of the suit, still something must be done to keep it alive and in activity'-and again 'there must be a continuous litis contestatio.' The suit in which the decree of 1869 was passed cannot, therefore, in our opinion, affect the defendant's title as a lis pendens. The defendant was a purchaser for value without notice of the plaintiff's decree, which created the lien on the land from Apaya, who was in possession at the time, and he, therefore, takes unaffected by the plaintiff's equitable lien created by the decree.
4. We must, therefore, confirm the decree with costs.