Harry Griffin and Muhammad Rafiq, JJ.
1. This is a reference made to this Court under the Kumaun Rules. Jairaj Mal, in execution of a decree against one Muhammad Mushtaq, applied for sale of certain property. In the course of the execution proceedings one Radha Kishan, on the 19th of September, 1904, put in an application to the effect that a mortgage of the 14th of January. 1895, be notified at the time of the sale of the property. On the same date the court executing the decree passed the order: 'Let the mortgage be notified.' We have no information as to whether any inquiry took place in that court as to the genuineness of the mortgage set up by Radha Kishan. The property was sold and was purchased by Jairaj Mal. In the year 1910, Radha Kishan sued to recover principal and interest on this document of the 14th of January, 1895. The defendant No. 2, Jairaj Mal; pleaded that the mortgage sued on was altogether a fictitious document. His defence was upheld by the court of first instance, which dismissed the plaintiff's suit. The plaintiff appealed. The court of first appeal held that, as the mortgage deed of 1895 was proclaimed as a lien on the property, Jairaj Mal cannot now claim that 'this mortgage is to be as if it had never been. As he has taken no steps to set it aside, it seems to me that he is bound by it and must either satisfy the mortgage or suffer the land to be sold.' That court allowed the plaintiff's appeal. On a further appeal by the defendant that court upheld the decision of the first appellate court. The Commissioner held that 'it has been rightly held that he (defendant) is now estopped from putting forward an allegation that this mortgage-deed is not a genuine document.' Jairaj Mal then petitioned the Local Government, with the result that we have before us this reference. The question as to which our opinion is invited is whether the Commissioner was wrong in law in holding that the appellant was estopped in questioning the mortgage deed. In our opinion, on the facts stated, the appellant is not estopped from questioning the mortgage deed in suit. The mortgage deed was notified in the proceedings of 1904 on the application of Radha Kishan. There was no declaration, act or omission on the part of Jairaj Mal which would operate as an estoppel. The ruling of this Court in Shib Kunwar Singh v. Sheo Prasad Singh (1906) I.L.R., 28 All., 418 lays down that a person in the position of Jairaj Mal is not debarred from proving that the mortgage set up by the plaintiff was fictitious and without consideration. This being our opinion on the question of law involved, we think that the proper course to be adopted is to send the case back to the first appellate court for disposal of the other pleas in the appeal. We are further of opinion that costs of this reference should be costs in the cause, and that costs should abide the result.