Norman Macleod, Kt., C.J.
1. This was an application by Bai Mani daughter of one Keshavlal Ranchhod under Order XXI, Rule 100, Civil Procedure Code, complaining that she had been wrongfully dispossessed of certain property, and claiming that possession should be restored to her. The facts leading up to this application are set out in the judgment of the trial Court The house belonged to one Mulchand Haribhai. It was mortgaged with possession for more than Rs. 3,500 to one Amritlal. A money decree was passed against Mulchand, and in execution of that money decree this house was sold subject to the mortgage rights of Amritlal, and was purchased by the opponent Ranchodlal Amritlal. Bai Mani claimed either to be mortgagee or to have a mortgage lien to the extent of Rs. 500, and she applied to the Court to have her mortgage lien for Rs. 500 notified in the sale proclamation, but her application was not granted, so she appealed to the District Court. Pending that appeal the house was sold and purchased by the opponent. After the sale the District Court held that the executing Court ought to have notified the mortgage claim of Bai Mani in the sale proclamation and reversed the previous order of the executing Court. Then the opponent as an auction purchaser applied to the Court for delivery of possession of the house purchased by him. That application would be made under Order XXI, Rule 95. The house was at that time closed by the lock of Bai Manx. Consequently an application had to be made under Order XXI, Rule 97. That question came up for decision under Rule 97. Bai Mani was present, but the opponent was absent, consequently his application was dismissed, and Bai Mani remained in possession, and as she was present she must have informed the Court of her claim. Although the opponent was absent, it cannot be said that the application was dismissed for default of appearance of both parties, because from' the nature of the proceedings, it must be taken that it was a decision of the Court maintaining the obstruction by Bai Mani.
2. The opponent then made a fresh application, which purported to be made under Rule 95 for possession. The previous application, which had been made for possession and dismissed for default,. WM recited, but no mention whatever was made of his previous application to remove the obstruction by Bai Mani having been dismissed. If mention had been made of that application, then we do not think the Court would have entertained the second application for possession. However, an order was made for possession which necessitated Bai Mani applying for its discharge.
3. The trial Judge said:
I think the conduct of the opponent in obtaining a warrant for delivery of possession of the house described in this application, by suppressing the fact that his application for removal of obstruction was dismissed amount to a distinct fraud upon the Court. He clearly abused the process of the Court. If the fact of the dismissal of opponent's application for removal of obstruction made by the applicant were known to the Court no warrant for delivery of possession would hare been issued. After the dismissal of opponent's application the only remedy open to him was a suit. I therefore order that status quo ante should be restored by placing applicant in possession of the house leaving it open to opponent to take whatever stops he may be advised to take to enforce his rights as a purchaser and to have possession of the suit house from the applicant.
4. That, therefore, was an order under Order XXI, Rule 101. However, the opponent filed an appeal. The learned Small Cause Court Judge, before whom the appeal was heard, seemed to think that the question whether an appeal lay was of a trivial nature, while on the facts it seems to us that the Judge failed to appreciate what actually occurred. He did not think that the opponent bad suppressed any facts in his last application for possession which he ought to have disclosed. We cannot agree with him. We think the trial Court was perfectly correct in stating that the opponent had suppressed the most important fact in his last application for possession. It seems to us, therefore, that the order of the Subordinate Judge should be restored on the ground that no appeal lay to the District Court.
5. The respondent has taken a point that no appeal would lie from the order of the Small Cause Court Judge. It really makes no difference if that order was made without jurisdiction, We can deal with it under Section 115, Civil Procedure Code. It will not be necessary, therefore, to deal with the somewhat complicated question whether the proceedings should continue in execution under Section 47, instead of the right of the parties being determined in the future by a separate suit.
6. It may be pertinent to observe that this Court baa always consistently held that an auction-purchaser is a stranger to the proceeding, and is not a representative of any of the parties to the suit, so that any questions which might arise between him and the parties to the suit or their representatives must be determined by a separate suit, unless the test laid down in Gokulsing Bhikaram v. Kisansigh I.L.R. (1910) 34 Bom. 546 : 12 Bom. L.R. 539 could be made applicable. There it was held that 'though an auction-purchaser at a Court-sale in execution of a decree was not a party to the suit in which the decree was passed, and though he was not a representative of either the decree-holder or the judgment-debtor for the purpose of Section 244, yet if the question raised by the judgment-debtor as to the legality of the Court-sale was virtually one between the parties to the suit, i.e., between the decree-holder and the judgment-debtor, and if in the decision and result of that question the auction-purchaser was interested, the judgment-debtor ought not to be allowed to attack the sale in a suit.
7. In this particular case, the question with regard to Mulchand's mortgage was not a question between the parties to the suit, that is to say, between the decree-holder and the original judgment-debtor Mulchand. The only question in the suit was whether the plaintiff owed a simple debt to Mulchand, and the question which now arises between Bai Mani and the auction-purchaser is whether the auction-purchaser obtained title to the property free of Bai Mani's charge or subject to it. Therefore the decision in Gokulsing Bhikaram v. Kisansing does not assist the present respondent. We set aside the order of the lower appellate Court and restore that of the Subordinate Judge with costs throughout.