Burkitt and Henderson, JJ.
1. On the 19th June 1872, one Jagannath mortgaged 11 1/4 biswas in a particular mahal to Tulshi Ram. This mortgage was a simple mortgage, but it appears that subsequently the mortgagee was let into possession (it is not shown how), and from that time the mortgage was treated as if it had been a usufruotuary mortgage. Jagannath died leaving three sons, Raghunath Das, Narain Das and Mulohand, who may be described as Mulohand No. 1.
2. On the 29th October 1881, Raghunath and Narain Das sold their two-third shares in the 11 1/4 biswas (or 7 1/2 biswas) to Tuishi Ram, who thus became the owner of the 7 1/2 biswas, and continued to be the mortgagee of the 3 3/4 biswas of Mulchand No. 1. The share of Mulohand No. 1 remained unaffected. Tuishi Ram, who owned another 5 biswas in the same mahal, died, leaving a son Mulchand No. 2. Mulchand No. 2, who was in possession of the Hi biswas and his 5 biswas, on the 3rd January 1887, executed a mortgage purporting, as full owner, to mortgage the entire 16i biswas to Musammat Kaunsilla and Bishan Lal. The mortgagees, Musammat Kaunsilla and Bishan Lal, brought a suit upon their mortgage against Mulchand No. 2 only, and obtained a decree for sale, and under that decree the property was sold on 20th June 1895, and purchased by Musammat Kaunsilla for Rs. 7,000 odd. This sale was confirmed, and she obtained possession on the 24th September 1895.
3. On the 22nd February 1897, the plaintiff-respondent Chandar Sen, who had previously, on the 24th May 1897,purchased Mulchand No. 1's 3f biswas, sued to eject the defendant Musammat Kaunsilla. He was given an opportunity of redeeming, but he declined to accept it. The Lower Appellate Court has given the plaintiff a decree for his claim as made.
4. It has been contended that, having regard to the Full Bench decision in the case of Matadin Kasodhan v. Kazim Husain (1891) I.L.R. 13 All. 432, Kaunsilla took nothing under her purchase. That case hay no reference to a sale which has actually taken place and been confirmed, as in the case before us. It merely deals with the right of the mortgagee who has not made prior or subsequent mortgagees parties to his suit to bring the property to sale. That case, in our opinion, therefore, has no application to the circumstances of the present case. It has been contended that Kaunsilla and Bishan Chand being subsequent mortgagees in respect to the one-third share of Mulchand No. 1 were not entitled to bring the mortgaged property to sale under the decree which they obtained in their suit. But, as a matter of fact, the property has been sold under that decree, and the sale has been confirmed and possession given. It is not necessary, as has been held by the Privy Council, for an intending purchaser at a sale under a decree to go behind the decree, to see whether the decree has been rightly made. In Rewa Mahton v. Ram Kishen Singh (1886) I.L.R. Cal. 18, their Lordships of the Privy Council say: 'To hold that a purchaser at a sale in execution is bound to inquire into such matters would throw a great impediment in the way of purchasers under executions. If the Court has jurisdiction, a purchaser is no more bound to inquire into the correctness of an order for execution than he is as to the correctness of the judgment upon which the execution issues.' There seems to be no real distinction between a sale which takes place under a decree which directs a sale, as in the case of a mortgage, and a sale in execution held under an order made after a decree for money. See Mukhoda Dasi v. Gopal Chander Dutta (1899) I.L.R. 20 Cal. 734 at p. 737. We have also been referred to two cases, one Hargu Lal Singh v. Gobind Rai (1897) I.L.R. 19 All. 541, and the other an unreported case in Second Appeal No. 637 of 1897 recently decided by a Bench of this Court. Neither of these cases deals with the case of a sale which has actually taken place, and they are therefore not in point. The plaintiff in this case is the representative of the mortgagor, and we are unable to see how, under the circumstances of this case, he can be entitled to get possession without redeeming an admittedly existing lien on the property held by the defendants.
5. We therefore allow the appeal, set aside the judgment of the Lower Appellate Court and restore that of the Court of First Instance, dismissing the claim with costs in all Courts.