1. The decision of the majority of this Court in Diwan Singh v. Bharat Singh I.L.R. 3 All. 206 has been pressed upon us as an authority for holding that the present suit is not barred by the terms of Section 257, Act VIII of 1859. I myself dissented from the view taken by the majority of the Court in that case, but I feel myself bound to accept the ruling so far as it is applicable to the case before us. Assuming, however, that it is an authority for holding that the present suit is maintainable, and we are at liberty to determine if the Judge's order setting aside the sale was properly made or not, and if not, to set it aside and declare plaintiffs' right to have the sale confirmed to him, I am not disposed to do so, with reference to some of the grounds on which the Subordinate Judge proceeds.
2. The fact that the order of attachment and notices of sale were not issued under the signature of the Judge, but of the Munsarim, as though emanating from him, constituted serious illegalities of procedure: orders so issued could, properly speaking, have no legal effect, since Section 222, Act VIII of 1859 requires that the warrants for execution shall be signed by the Judge, and the Munsarim had no power to sign them, having regard to his duties as declared in Section 24, Act III of 1873 (Civil Courts Act), and the orders of this Court made in pursuance of the provisions of Section 24.--(C. O. No. 9, 1867, No. 11, 19th August 1870).
3. Moreover the sale could not now be confirmed in plaintiff's favour without serious injustice to the respondents who have purchased the property from Mahtab Singh bona fide and for value, and to whom at the time of the sale Mahtab Singh was able to confer a good title, since the sale at which plaintiff bid could not become absolute without confirmation.
4. Since the date of the auction-sale also the liabilities on the property have been satisfied, and the state of things has materially changed, and it would be inequitable to allow plaintiff, after standing by for a year and permitting dealings to be made with the property, to come in and take advantage of the change of circumstances, and obtain a property become much more valuable at the price he originally offered.
5. I refuse, therefore, to give a declaration of his right to have the sale confirmed to him, and I would dismiss the appeal with costs.
6. I concur with my honourable colleague, that the plaintiff's claim should be disallowed and this appeal dismissed. I am of opinion that the sale in execution at which the plaintiff bought was wholly void, and that the absence of the signature of the Judge from the warrant and attachment vitiated the proceedings in execution ab initio. The language of Section 222 of Act VIII of 1859 is plain and positive, and it seems to me impossible to hold that the order directing attachment is not a warrant within the meaning of that section, whether it was directed to the nazir or other person to seize the moveable property of a judgment-debtor, or to the judgment-debtor himself, prohibiting him from alienating his immoveable property: it was an order essentially in the nature of a warrant, and as such required the Judge's signature under the old law. It was contended for the appellant at the hearing that this objection was not taken by the judgment-debtor in the grounds upon which he asked for cancelment of the sale, and that the Judge had no right to entertain it of his own motion. I am by no means sure that this plea has any foundation in fact; for I find that the Judge remarks in his judgment that the first contention on the appellant's part is, that no sale, properly so called, took place, that is, that all proceedings were vitiated ab initio by the irregularity of the warrant of execution, which ought not only to bear the seal of the Court, but also 'shall be signed by the Judge.''
Even if this point had not been started by the judgment-debtor, I think it would have been competent for the Judge himself to take notice of it, going as it does to the very root of the proceedings; but, under any circumstances, we, in a suit like the present, which practically invites us to confirm a sale by declaring the plaintiff's right to have it confirmed, are in my opinion not only entitled, but bound to closely scrutinise all the proceedings in execution, to ascertain whether such sale was a valid and binding one. This I have already said it was not, and the foundation of the plaintiff's claim therefore falls away. I say nothing as to his conduct in holding back until almost the very last moment from instituting his suit, though I am glad to think that, from the point of view from which I regard the case, the subsequent innocent purchasers from the judgment-debtor will retain the property they have not only bought and paid for, but the incumbrances upon which they have discharged.
7. The plaintiff appealed to Her Majesty in Council.