1. On the 26th June 1872, one Daulat executed a bond for Rs. 0,000 in favour of Gokaran Prasad payable by installments extending over thirty years, and he hypothecated his five-biswa share in the village of Bajua as security for the payment of the debt, any transfer being prohibited until the money was repaid. In case of any default in the payment of the instalments, interest at the rate of one per cent, per mensem was payable. If two instalments remained unpaid, the obligee was entitled to recover the entire amount from the obligor and the property hypothecated. On the 12th May 1873, Paras Ram, Lambardar, and Lai Singh, Pattidar, sons of the obligor, Daulat, describing themselves as owners of two-thirds out of the five-biswa share hypothecated by the said Daulat, leased their two-thirds including sir lands and all other rights for a period of twelve years to Hukain Singh. This lease was registered on the 28th of August, and mutation of names was had in the Revenue Court. In the meantime default had occurred in the payment of instalment under the bond, and a suit was instituted by Gokaran Prasad on the 28th October 1873, for the money due on the bond against them, but be had not sought to enforce his lien against the property, as there was no decree against it. On the 28th August 1874, the same plaintiff as decree-holder purchased the property, and after taking a receipt for the money due to the decree-holder, the judgment-debtors received the balance of the sale-proceeds, some Rs. 3,000. The plaintiff then found that the lessee under the lease of May 1873, opposed his possession in respect of a little more than three biswas, six biswansis, thirteen kachwa.nsis, and six manwa.nsis. He therefore brought this suit, making the lessee and lessors defendants in the case. He sues, as auction-purchaser and to set aside the lease as having been executed collusively and fraudulently without his knowledge with the view of depriving him of his right, in spite of the hypothecation made in the bond of 1872. By a subsequent petition, the plaintiff was allowed to amend his plaint by the additional prayer that his lien under the bond of June 1872 might be enforced.
2. The facts are not denied. The defendant, Hukam Singh, the lessee, contends that as the plaintiff did not sue for the enforcement of the lien when lie sued for the money due on the bond, the lien had become null and void after the passing of the money-decree, and plaintiff was not competent to sue for the cancelment of the lease which had been executed in good faith and for legal consideration. The defendant obtained possession prior to the purchase of plaintiff, with whose knowledge the lease was made and mutation of names effected under it, lie being a co-partner and sharer in the estate. The suit had been instituted by collusion between plaintiff and the lessors.
3. The lessors do not appear to have defended the suit. The Subordinate Judge in a brief decision held that the plaintiff's omission to claim the enforcement of the lien was no bar to his present claim, and that the lease had been collusively executed by the lessors and lessee, that it was a transfer, and therefore an alienation prohibited by the conditions of the bond and must be set aside.
4. Substantially, the pleas in appeal on the part of the defendant are the same as those urged in the Court below.
5. The decree of the Subordinate Judge cannot, we think, be maintained.
6. It has been held by this Court in Khub Chand v. Kalian Das I.L.R. 1 All. 240 that 'nothing passes to the auction-purchaser at a sale in execution of a decree but the right, title, and interest of the judgment-debtor at the time of the sale.' The case cited is not precisely similar to the one before us but the principle is the same. It was also ruled that when the holder of a simple mortgage-bond obtained only a money-decree on the bond, in execution of which the property hypothecated in the bond was brought to sale and was purchased by him, be could not resist a claim to foreclose a second mortgage of the property created prior to its attachment and sale in execution of his decree, and further, it was held that the holder of a money-decree in the particular case could not avail himself of a condition against alienation contained in his bond to resist the foreclosure. Here, too, the principle would seem to apply. But in the case now before us, the auction-purchaser was the decree-holder, and the sale-proceeds were sufficient to discharge the debt and give a considerable surplus to the judgment-debtors. Under these circumstances, we fail to perceive how the auction-purchaser can fall back upon the collateral security for a debt which no longer exists. But, apart from this if the lease of May 1873 was prohibited by the hypothecation and conditions of the bond, then plaintiff might have proceeded against the property so hypothecated when he first instituted his suit, and possibly might have impleaded the lessee successfully. He omitted to do so, and his debt having been satisfied, it seems that he has no title as auction-purchaser to question the lease, ft was made before ho had brought his suit and registered openly; mutation of names was had under it. It is not denied that the plaintiff is a co-partner and sharer in the estate. The lease is for twelve years only and for a portion only of the property hypothecated. There was no attachment of the property when the lease was made. It was for the plaintiff to have established that the lease was fraudulently prepared and executed with a view to injure him. This we do not find that he had been successful in proving. He has not lost the property. He is the proprietor of it. It has not been so alienated as to jeopardise his proprietary right. He has got under his auction-purchase all the rights that his judgment-debtor possossed, subject, however, to the lease which has placed the management of two-thirds of the five-biswa share in the hands of a lessee for twelve years. But, as pointed out above, he could not fail to have been aware of the transaction, and deliberately ho omitted to sue to enforce his lion, if he could do so, against the lessee, when ho brought his claim for the money duo under the bond. He has no one to blame but himself, and having satisfied his debt by the purchase of the property, it is too late now to say that the lease was an infringement of the hypothecation of the bond.
7. We decree the appeal, and reverse the decree of the Subordinate Judge, and dismiss the suit with costs.