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Issues: (i) whether the plea of lis pendens under section 52 of the Transfer of Property Act could be entertained though not specifically pleaded; (ii) whether the maintenance suit and the execution sale in its enforcement were collusive so as to prevent the operation of lis pendens; and (iii) whether the purchaser under the execution sale acquired a valid title notwithstanding the non-joinder of the Official Receiver in the later execution proceedings.
Issue (i): whether the plea of lis pendens under section 52 of the Transfer of Property Act could be entertained though not specifically pleaded.
Analysis: The omission to plead lis pendens specifically did not cause prejudice because the parties went to trial with full knowledge that the question was in issue, evidence bearing on the maintenance suits and the execution sale was led without objection, and the defendants themselves cross-examined and argued the point on its merits. Where parties actually go to trial on a question and have full opportunity to meet it, the absence of a specific pleading is only an irregularity.
Conclusion: The plea of lis pendens was open and properly considered against the appellants.
Issue (ii): whether the maintenance suit and the execution sale in its enforcement were collusive so as to prevent the operation of lis pendens.
Analysis: The earlier proceedings relied upon by the appellants did not establish collusion. The materials showed a bona fide maintenance claim arising out of the partition arrangement, a real and contested litigation, repeated execution steps, and an execution sale taken only after the decree could not otherwise be satisfied. The prior statements describing the proceedings as fraudulent did not amount to clear admissions of collusion, and in any event the plaintiff was not barred by approbation and reprobation because he had derived no advantage from asserting collusion in the earlier suit against a different objector. The doctrine of election applied only where the same person, with full knowledge, took inconsistent positions as to the same transaction to secure inconsistent reliefs.
Conclusion: The proceedings in the maintenance suit and the execution sale were not collusive, and the appellants could not defeat the respondent's title on that ground.
Issue (iii): whether the purchaser under the execution sale acquired a valid title notwithstanding the non-joinder of the Official Receiver in the later execution proceedings.
Analysis: The transfer under the sale deed of 30 January 1920 was valid between the parties though subject to lis pendens, so the properties had ceased to be the insolvent's property when the adjudication was made. Even assuming some residual interest in the insolvent passed to the Official Receiver, the defect arising from his non-joinder in the execution proceedings could be taken advantage of only by the Receiver and not by a transferee pendente lite seeking to impeach the sale. A sale in a defectively constituted mortgage proceeding may be ineffective against persons who ought to have been joined, but it remains operative against parties and their transferees who are bound by lis pendens.
Conclusion: The execution sale was not void for non-joinder of the Official Receiver, and the respondent's title remained effective against the appellants.
Final Conclusion: The appellants' title was extinguished by the execution sale, and the decree recognizing the respondent's title and possession was upheld.
Ratio Decidendi: A transferee pendente lite cannot avoid a later execution sale by relying on the non-joinder of a person whose interest, if any, could be asserted only by that person, and a plea of lis pendens may be entertained where the parties actually went to trial on that issue without prejudice from the want of a specific pleading.
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