1. This appeal arises out of a suit to redeem a mortgage on the movable property under the following circumstances. The original owner of the property, one Badri Prasad, gave an usufructuary mortgage in August 1856 to the predecessor-in-title of the defendant No. 1 respondent, on the 20th November 1872. The equity of redemption was sold in execution of a decree against him and was purchased by one Nand Lal, who is now represented by defendant No. 2. The sale admittedly was duly confirmed but as possession was with the usufructuary mortgagee, no formal possession was asked for. Neither has any sale certificate been taken from the Court. Subsequent to this, Bhola Nath, son of Badri Prasad, sold to the appellant's ancestor the equity of redemption. The appellants have now sought to redeem the mortgage. His suit has been thrown out by both the lower Courts. On second appeal two grounds are pressed. The first ground is that contained in the fourth plea of the memorandum of appeal. It is that because the nature of the property in the bands of Badri Prasad and his son, Bohla Nath, has not, been determined, the alleged sale could not pass the rights of the sons in the properly. This point is one which was not taken in either of the Courts below. No issue was framed on it and no evidence was directed to it and lastly it is contrary to the very pleading contained in paragraph 1 of the plaint itself, where it is distinctly stated at Badri Prasad was the owner of the pro-y and that Iris son Bhola Nath inherited it from him. This plea is one which cannot be entertained at this stage of the case. Its decision will necessitate the taking of further evidence and a finding of fact. I, therefore, refuse to entertain it now in second appeal.
2. The second point taken is that no certificate of solo having been obtained from the Court, the title of Nand Lal, and his representative, the defendant No. 2, is not complete, i.e., that the equity of redemption has not vested in them and that, therefore, the plaintiffs-appellants are entitled to redeem the mortgage. This contention is not a now one and is, moreover, covered by decision. It is urged that the language of Section 310 of the Code of 1882 shows that until a certificate of sale is obtained the title cannot vest in the auction purchaser. This contention is far from sound. In the case of Chiddo v. Piari Lal 19 A. 188, the facts were similar to those of the present case. That also was a suit for redemption brought after the equity of redemption had been sold and purchased at auction. Aikman, J. therein held that although the auction purchaser at a sale held in execution of a decree may not obtain a full title until a certificate has been granted, this must not be considered as necessarily destroying any lesser interest which arises by reason of general equitable principles. The point was discussed at greater length, in the case of Balwant Babaji v. Hira Chand Golab Chand 27 B. 334, by Mr. Justice Betty. The learned Judge there pointed out that there was nothing in Section 316 which makes the certificate of sale conclusive as to the property sold. He also points out the significant change that bad taken place in the language of the section as compared with that of Section 259 of the Code of 1853. The latter section required the Court to grant a certificate to the person who might have been declared to be the purchaser, to the effect that he had purchased the right, title and interest of the defendant in the property sold and declared that such certificate should be deemed to be valid transfer of such right, title and interest. The same language is not to be found in Section 316 of the Code of 1882. The question as to what property has passed is determined by the sale itself. The certificate, so far as regards the parties to the suit and those claiming through or under them, declares the date from which the property actually sold vests in the purchaser. The section does not operate to declare what has been sold. It seems to me quite clear that the title vests in the auction purchaser on the date of the confirmation of sale, which is the date the sale certificate bears, no matter when the latter may issue. There is no period of limitation fixed during which an auction purchaser has to make an application to obtain a sale certificate. In my opinion when the sale of 20th November 1872 was duly confirmed, Badri Prasad and his heirs lost all their title to the present properly. The appellants are the representatives-in-title of Bhola Nath, son of Badri Prasad, and they have no interest in the property mortgaged. They, therefore, are not entitled to redeem. The appeal, therefore, fails and is dismissed with costs including in this Court fees on the higher scale.