1948 (4) TMI 8

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.... affected the appellant's mortgage. It was conceded, and rightly, in the opinion of their Lordships, that this mortgage was executed during the pendency of suit No. 229, that it" transferred or otherwise dealt with" the land in question within the meaning of the section, and that the expression" decree or order" therein includes a decree or order made pursuant to agreed ter....

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....e litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment and, in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact th....

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....e plaint and was, so to speak, outside the scope of the litigation. Their Lordships are unable to accede to this submission. It may well be that Section 52 does not contemplate a decree or order which is entirely alien to the issues raised between the parties. The wording is -" any decree or order which may be made therein," that is, in the suit or proceeding. But it applies to a comprom....

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.... of the compromise, which stated that, subsequent to the agreement of June 8, 1932, there was no mortgage on the property in question save the appellant's. Had it mentioned the date of the mortgage and used language apt to indicate that the parties regarded it as entitled to priority, the case for implying a modification of the terms of Clause 6, which expressly provided that the decretal dues....