Basil Scott, Kt., C.J.
1. The subject of these appeals is five Survey Numbers 68, 71, 75, 76 and 77, which were mortgaged with possession in the year 1873 by the plaintiffs' predecessors to the defendants' predecessors.
2. The mortgage provided that interest should be payable every year; therefore the mortgagee, on default in payment of interest, obtained a money-decree against the mortgagor in 1876 for Rs. 500 on account of arrears of interest.
3. On the 5th of October 1877, in execution of the decree, the Survey Nos. 68 and 75 were put up for sale and purchased by the mortgagee, and the Survey Nos. 71, 76 and 77 were about the same time put up for sale and purchased by one Balvant Jagannath who obtained possession.
4. On the 7th August 187,9, Balvant Jagannath sold the three . Survey Numbers to the mortgagee who has been in possession of all the five Survey Numbers since that time, having only lost possesssion of three Survey Numbers at the time of the original sale to Balvant Jagannath.
5. In 1907, thirty years after the sales in execution of the decree, the present suit was instituted by the plaintiffs to redeem the five Survey Numbers. 6. The Subordinate Judge held, on the authority of Martand v. Dhondo ILR (1897) 22 Bom. 624, that the sales in execution in 1877 were a nullity and decreed redemption.
7. The learned District Judge came to a different conclusion, holding that as regards Survey Numbers 68 and 75 the mortgagors mistook their remedy. They had a right, he held, to apply under Section 244 of the Civil Procedure Code of 1882 to have the sale avoided on the ground that the mortgagee should not have purchased the mortgaged property under a money-decree upon a claim arising out of the mortgage, and that after the sale was confirmed the mortgagors could not file a suit for redemption treating the sale as invalid and a nullity. As regards the other three Survey Numbers he held that the mortgagor was entitled to succeed, holding that the fact that the purchaser at the auction sale was no party to the decree, prevented any application under Section 244 and that therefore the plaintiffs were entitled to redeem.
8. With regard to Survey Numbers 68 and 75 we are of opinion that the decision of the learned District Judge is correct. It is supported by the observations of the Judicial Committee in the case of Khiarajmal v. Daim ILR (1904) Cal. 296 , where their Lordships, in referring to the right of the mortgagor to redeem in the case of a purchase by a mortgagee under a money decree not for the mortgage-debt, say that such purchase would not be a case of nullity for want of jurisdiction but a case of irregularity in procedure only. These observations were applied by a Full Bench of the Calcutta High Court in the case of Ashutosh Sikdar v. Behari Lal Kirtania ILR (1907) Cal. 61. The only two Judges who delivered judgment at length were the acting Chief Justice and Mr. Justice Mookerjee, both of whom based their judgment upon the observations in Khiarajmal v. Daim, Mr. Justice Mookerjee observed that it cannot be affirmed as a proposition of law of universal application that non-compliance with every provision of the law makes the proceedings a nullity, and pointed to three cases decided by the Judicial Committee in which it was held that the sales in violation of express provisions of the Civil Procedure Code could not be treated as nullities. We hold that the only remedy, which the plaintiffs had, a was in the first instance to get the sale set aside under proceedings taken in execution under Section 244 of the Civil Procedure Code. This they have ' failed to do. Until they have done it, they cannot maintain their suit for redemption, because the sale is not void but only voidable.
9. Then it is said that the mortgagee must be treated at all events as a trustee for the mortgagor, and that proposition is based upon the observations in Kamini Debi v. Ramlochan Sirkar (1870) 5 B. L.R. 450 and Pancham Lal Chowdhury v. Kishun Pershad Misser (1910) 14 C W.N. 579. But as pointed out by the Judicial Committee in Mahabir Pershad Singh v. Macnaghten ILR (1889) Cal. 682, the proposition laid down in Kamini Debi v. Ramlochan Sirkar (1870) 5 B. L.R. 450 depends upon the assumption that the mortgagee purchased without obtaining leave to bid.
10. Here it has not been suggested that everything was not in order at the time of the purchase, and we cannot assume, thirty years after the sale, that the mortgagee did not take the necessary precautions in obtaining leave to bid. No suggestion of the kind was made in the lower Court.
11. For these reasons we affirm the decision of the learned District Judge with reference to Survey Nos. 68 and 75 and dismiss the appeal No. 188 of 1910 with costs.
12. There remains the question of the Survey Nos. 71, 76 and 77.
13. Now those Survey Numbers at the time of the sale passed into the possession of a stranger to the decree whose sale was confirmed and who obtained possession and enjoyed it for two years. The mortgagee subsequently purchased from him, and he is entitled to-rely upon the title of his vendor.
14. The case of Martand v. Dhondo ILR (1897) 22 Bom. 624, which was relied upon in the lower Court in support of the plaintiffs' claim, has no. application to the case of a purchase by a stranger, for, as observed by the Chief Justice, who delivered the judgment in Martand v. Dhondo, in a subsequent case of Husein v. Shan Kargir ILR (1898) 23 Bom. 119 , Martand v. Dhondo cannot be extended to the of a third person purchasing bona fide at an execution sale held by the mortgagee. That being the case, the mortgagee's right to have the sale set aside (if any right he had) should have been put forward in a suit within one year, from the date of the confirmation of the sale under Article 12 of the Limitation Act. He did not do so and he cannot now, thirty years after that sale, assert his claim as mortgagor against the original mortgagee in a redemption suit disregarding all the proceedings which followed upon the Court sale.
15. For these reasons we reverse the decree of the lower appellate Court with reference to Survey Nos. 71, 76 and 77, and dismiss the suit with costs throughout.