1. The facts which have given rise to this second appeal are as follows : The plaintiff obtained a simple mortgage from one Shamsher on 25th January 1916. He obtained a decree lot sale on 2,5th. November 1925. The property was sold in execution of the decree and was purchased by the plaintiff himself on 4th May 1928. Shamsher mortgaged some property which it has now been found by the lower appellate Court, was other than the property mortgaged to the plaintiff, on 12th August 1910. A decree was passed in favour of the mortgagee, Kayastha Bank, on 30th August 1923. The defendant, who is the appellant before me, purchased the decree on 12th November 1924 and brought the property mortgaged to him to sale on 17th October 1927. Before the sale however the appellant obtained an order amending the preliminary and final decrees passed in Kayastha Bank's suit, the result of which was that the property mortgaged to the plaintiff was added to the property mortgaged to Kayastha Bank. The result of the sale in favour of the defendant therefore was that the appellant, who was the auction-purchaser, professed to have purchased not only the property originally mortgaged to Kayastha Bank but also the property mortgaged to the plaintiff. The defendant obtained delivery of possession on 18th December 1927. The plaintiff brought the suit out of which this appeal has arisen on the allegation that when having purchased the property mortgaged to him he went to take possession of it, he was resisted by the defendant-appellant. The first Court dismissed the suit holding that as the sale in favour of the defendant took place before the sale in favour of the plaintiff, the plaintiff was bound to make the defendant a party to the execution proceedings and, having failed to do so, was not entitled to maintain the suit. The lower appellate Court held that as the properties were different, the defendant by his purchase could not keep anything, because the property in suit was never mortgaged to the Kayastha Bank. In the result, the suit which was one for possession, was decreed with costs.
2. It has been argued before me that the auction sale of 17th October 1927 made in favour of the defendant had at least the merit of passing the property in suit to the defendant, and therefore it was the duty of the plaintiff to make him a party in the execution proceedings; that is to say, the learned Counsel for the appellant argues that the decision of the Court of first instance was right. There are several answers to this contention : first of all Section 52, T.P. Act, stands in the way of the appellant. Assuming that his purchase was like a purchase at a private sale, the purchase was subject to the decree obtained by the plaintiff and was also subject to the result of the execution of that decree. If the defendant wanted to take advantage of a private sale made by a mortgagor after the decree, it was his duty to intervene in the execution proceedings and to pay the mortgage money and to stop the sale. After the sale has taken place it is open to the purchaser from the mortgagor against whom a decree for sale has been passed to say that he can nullify the purchase under the mortgage decree.
3. The second answer is that the property purchased by the plaintiff being not included in the mortgage in favour of the Kayastha Bank, the plaintiff would never know that that property has been sold in execution of the Kayastha Bank's decree and it would certainly not be his duty to make the defendant a party to the execution proceedings. The result is that the appeal cannot succeed and is hereby dismissed with costs.