1. This is a first appeal by the plaintiffs whose suit for possession has been dismissed by the lower Court. The plaintiffs were defendants in a suit on a hypothecation bond of 29th June 1914, brought by the defendants and the defendants obtained a mortgage-decree for Rs. 3,848 against both plaintiffs and against the property hypothecated and also a simple money decree for rupees 6,531 against plaintiff 1, alone, who is the father of plaintiff 2. In execution of that decree there was a sale of property and the plaint set out that the defendants wrongly declared the property to be ancestral and fraudulently took this proceeding and kept it concealed from the plaintiffs and that in fact the property is not ancestral. On account of this fraud the property worth Rs. 40,000 was sold for Rs. 16,000. The sale is unlawful and therefore the plaintiffs ask for possession of the property as owners as no title passed to the defendants. The written statement pleaded that the suit of the plaintiffs was barred by estoppel under Section 115, Evidence Act, and also barred by Section 47, Civil P.C., and that the defendants did not make any fraudulent representation, but that the plaintiffs themselves applied stating that the property was ancestral. The facts are that in the execution proceedings the defendants decree-holders applied for the sale of the property as non-ancestral. The judgment-debtors made an application on p. 53 of printed book stating that the property attached was the ancestral property of the judgment, debtors from generation to generation. This application was on behalf of both the judgment-debtors who are the present plaintiffs. An inquiry was made from the Collector as the order sheet show and it was reported that the property in the present plaint was ancestral, other property being non-ancestral. The objectors applied to produce documentary evidence to establish the fact that their property was ancestral and the case was postponed. Finally the pleader for the decrees-holder stated that the shares in the four villages in the present plaint were ancestral and might be sold as an ancestral property. Accordingly the Civil Court found that the shares in question were ancestral property and directed the Collector' to sell these shares as ancestral property. Now it is in regard to these shares that the present plaintiffs have produced sale-deeds to show that they were purchased subsequent to 1860, and therefore that these shares do not come within the definition of 'ancestral property.'
2. It is pleaded by defence that the plaintiffs are estopped under Section 115, Evidence Act, from making this pleading in view of the fact that in the application on p. 53, dated 19th June 1926, the plaintiffs stated that the property attached was-ancestral. Learned Counsel argued that there would be no estoppel on a question of jurisdiction. But we consider that, there is estoppel on the question as to whether the property was ancestral and we consider that the plaintiffs are estopped from pleading now that the property was not ancestral. That being so the plaintiffs cannot establish that the Collector did not have authority to sell this property as ancestral property. The second question which was raised was the subject of the sixth ground of appeal-which stated that the sale of the properties effected without attachment in execution of the simple money decree was illegal and vitiates the sale. To appreciate-this argument we must refer to the details of the auction-sale by the Collector printed on p. 80 of the paper book. This shows that lot No. 78 was sold for Rs. 7,000. This is the mortgaged property seven annas share in mauza Sarai Kaldas. The amount of the mortgage-decree was under Rs. 5,000 at the time of the sale and therefore learned Counsel claims that the mortgage-decree was entirely satisfied by the sale of this seven annas share in Sarai Kaldas. But the Collector proceeded to sell lot No. 79 which was seven annas share mortgaged in Chak Sadbo, and also lot No. 80 which was six annas share mortgaged in mauza Gobardhanpur. These two lots were sold for Rs. 2,000 each. Now the shares in these two lots had not been attached because they were shares-subject to the mortgage-decree.
3. The property which had been attached under the simple money decree consisted of one anna share in these two villages and also one anna share in Sarai Kaldas and eight annas share in mauza Sidhnath. The point which, is taken by learned Counsel is that the sale of the shares of six annas in Gobardhanpur, and seven annas in Chak Sadho was altogether illegal and void and conveyed no right or title whatever because there had been no attachment and therefore they could not be sold under the simple money decree and further as the mortgage-decree was satisfied by the sale of the first lot there was no necessity to sell these two further lots for satisfaction of the mortgage-decree. In this connexion learned Counsel referred to the provisions in Order 21, Rule 64, which says:
Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold.
4. The argument is that the attachment is a necessary preliminary of an auction-sale and that where there is no attachment the auction-sale will be altogether void. On the other hand the argument is that the want of attachment was a mere irregularity which might have been pleaded as an objection to the auction sale under Order 21, Rule 90, but in order to get the auction-sale set aside on the ground of that irregularity the objector must show that he sustained substantial injury. For the proposition of learned Counsel for the appellants reference is made in the first instance to the ruling of their Lordships of the Privy Council. Thakur Barhma v. Jiban Ram Marwari (1913) 41 Cal. 590. At p. 898 it is stated:
Their Lordships are of opinion that this is a very plain case. That which is sold in a judicial sale of this kind can be nothing but the property attached, and that property is conclusively described in and by the schedule to which the attachment refers. In the present case that property was six annas subject to an existing mortgage. The effect of the certificate of sale granted by the Subordinate Judge is to make the sale that of a property not attached, namely the six unencumbered annas, a property which could not be sold in such proceedings inasmuch as it was not the property attached. An attempt was made to treat the matter as a case of misdescription which could be treated as a mere irregularity. But in this case we have to deal with identity and not description.... It was beyond the powers of the Court to make such an order, inasmuch as there was no bar to sell in these judicial proceedings the property which is certified to have been purchased.
5. We are of opinion that in this passage their Lordships were not laying down any rule of law. We consider that their Lordships were deciding a question of fact as to which six annas share was sold and that in arriving at their decision on this point their Lordships considered that as the unencumbered six annas has not been attached it could not have been that six annas which was sold. The next ruling on which learned Counsel relied was Bulaqi Das v. Kesri : AIR1928All363 . That ruling differs from the present case as there was no intention of the Court to sell property which was not included in the mortgage-decree in that suit and some other property had been entered in the sale-certificate by mere clerical error. In the present case however the Collector clearly did intend to sell lots Nos. 79 and 80 and did in fact sell those lots. There was no question of a mere error in the sale-certificate. There was an actual sale and the question is whether there is any rule of law by which that sale would be altogether void and invalid. Reference was also made for the appellants to Sorabji Coovarji v. Kala Raghunath (1912) 36 Bom. 156. That was a case of a second appeal in execution against an order passed under Order 21, Rule 90, and the question was in regard to the irregularity in the conduct of the sale. In that particular case it was held that the sale was void. But the present case is different because this is not an appeal against an order in execution, but the present case is a regular suit which is based on the proposition that the sale is altogether invalid and that no proprietary title has passed by that sale. In Panchanan Das v. Kunja Behari A.I.R. 1918 Cal. 1036, there is another case of an appeal against an order in execution which for the same reason has no bearing on the question, before us. Against the contention of the appellants we may refer to Sheodhyan v. Bholanath (1899) 21 All. 311, in which it was held that the absence of an attachment prior to the sale of immoveable property in execution of a decree amounts to no more than a material irregularity, but is not sufficient unless substantial injury is caused thereby to vitiate the sale. This again was an appeal from an order refusing to set aside an auction-sale. To a similar effect was Ma Pwa v. Mahomad Tambi A.I.R. 1924 Rang. 124. We consider that the appellants have failed to establish their proposition that the mere want of a formal attachment under the particular circumstances of the present case would have the effect that the auction, sale passed no title to the auction-purchaser and that a suit like the present suit for possession would lie.
6. Accordingly we dismiss the first appeal with costs.