1. This is a Letters Patent appeal by the defendant Kesho Ram against a judgment of a learned single Judge of this Court upholding the decree of the lower appellate Court awarding possession of certain property to the plaintiff on certain conditions. The plaintiff had a simple money decree for Rs. 1,100 against Behari Singh dated 17th September 1925, and he applied on the same date for attachment of the property in execution. On 3rd October 1925 his judgment-debtor Behari Singh executed a usufructuary mortgage of this property to defendant 1 Kesho Ram, the appellant before us. This mortgage purported to be for Rs. 1,000. On 19th December 1925 Kesho Ram made an objection to the execution of the decree of the plaintiff, claiming that the property had been mortgaged to him. On 16th January 1926, the objection was allowed in a proceeding from which the plaintiff was absent, and it was held by the execution Court that the property should be sold subject to the mortgage in favour of Kesho Ram. The sale took place four days later on 20th January 1926, and it has been taken by the lower appellate Court that that sale was made subject to the rights of Kesho Ram as mortgagee. The plaintiff decree-holder purchased the property himself subject to this mortgage of Kesho Ram. On 26th October 1926, the plaintiff brought the present suit contesting the validity of the mortgage by his judgment-debtor in favour of Kesho Ram.
2. It has been argued by counsel for the appellant Kesho Ram that the suit of the plaintiff would not come under Order 21, Rule 63, and that the plaintiff is precluded from bringing the present suit in the civil Court. The ground on which the plaintiff is precluded is not particularly clear, because there is no principle of the law of estoppel by which the plaintiff could be estopped. The purchase at the auction-sale by the plaintiff did not in any way prejudice the rights of the appellant as mortgagee. The ease for the appellant has however been argued on the strength of obiter dicta in certain rulings of this Court. We may note at once that there is a definite ruling on the point in favour of the plaintiff Shah Ziyauddin Abdul Hossein v. Kailash Chander  2 C.L.J. 599.
3. In that case it was laid down that a person who purchases property in execution of his own decree apparently subject to a mortgage lien as declared by the Court under Section 282, Civil P.C., without however acquiescing in the order made under Section 282, in favour of the mortgagee, is entitled to question the validity and bona fides of the mortgage within a year of the order in the claim case. It is true that in that case it was pleaded by way of defence, whereas in the present case a suit has been brought by the plaintiff, but we consider that there is no distinction in the circumstances. Now the cases relied on by the learned Counsel for the appellant are firstly Inayat Singh v. Izzatunnissa Begum  27 All. 97. That was a Pull Bench case in which it was held by a majority of two Judges to one that where there was a notification in the sale proclamation that there were two prior mortgages on the property sold, the decree-holder purchased at the auction-purchase only the equity of redemption of the mortgaged property and not the whole of the proprietary rights therein. This ruling however did not deal with the case of a decree-holder who claimed to bring a suit to contest the order in the execution department.
4. The next case is Shib Kumar Singh v. Sheo Parsad Singh  28 All. 418. In that case also there was a notification in the sale proclamation of the existence of a mortgage. The mortgagee subsequently brought a suit for sale, and it was held that the auction-purchaser was not debarred from proving that the mortgage was fictitious and without consideration. The Court proceeded to draw distinction between the notification of a. mortgage in a sale proclamation and an order by an execution Court under Section 282, Civil P.C. of 1882, that the mortgage deed in fact existed. The Court held that in the case of an order under Section 282 the Court, after being satisfied of the existence of the mortgage, sells only the judgment debtor's right of redemption, so that the purchaser does not acquire any greater rights than those of redeeming the mortgage. Again the ruling did not consider the case of a decree-holder auction-purchaser who desired to bring a suit contesting the validity of the order in the execution department. We may note that the language quoted from p. 420 of this ruling, Shib Kumar Singh v. Sheo Prasad Singh  28 All. 418, is not in accordance with what is laid down in Order 21, Rule 62, and the previous Section 282, Civil P.C. of 1882, as the rule states that the Court may order that the attachment should continue subject to the mortgage. This shows that the Court continues the attachment of the property subject to the mortgage, and what is sold by subsequent sale is the property itself subject to the mortgage and not merely the right of redemption.
5. In Agha Sultan Khan v. Mohabbat Khan A.I.R. 1921 All. 79 there was again a case of a notification in a sale proclamation and it was held that that would not preclude the purchaser from subsequently questioning the validity of the incumbrance, and it was further held that the provisions in the Civil Procedure Code of 1908 did not differ from the previous law on the subject in the former Code. There was no reference in this ruling to the possibility of a case contemplated by Order 21, Rule 63, so the ruling is not an authority on that point.
6. Reference was further made to Kalidas Chaudhri v. Parsanna Kumar Das  47 Cal. 446. In that case, as far as we are able to ascertain, the property was sold on 22nd August 1914, and the suit which was brought to contest, among other things, the validity of a mortgage, is a suit referred to as original decree No. 93 of 1917. Presumably therefore the suit was brought at a period of more than one year after the auction sale and the order on the application which were both on the same date, and accordingly the question could not have been raised in that case as to the right of an unsuccessful party to bring a suit under Order 21, Rule 63 contesting the validity of an order in execution.
7. The rulings therefore produced before us can be summarized as follows: One ruling of the Calcutta High Court reported in Shah Ziauddin Abdul Hossein v Kailash Chunder  2 C.L.J. 599 deals with the precise facts before us, and that ruling is against the appellant. The other rulings merely contain obiter dicta on which the appellant seeks to rely, but in these rulings the rights of an unsuccessful party to a proceeding in execution to bring a suit contemplated by Order 21, Rule 63, has not been considered. The weight of authority therefore is in favour of the plaintiff-respondent Accordingly we consider that the judgment of the learned single Judge of this Court is correct, and we dismiss this Letters Patent appeal with costs.