1. The plaintiffs sued on a mortgage, one of the defendants being the auction purchaser at a sale of the mortgaged property, held in execution of the decree of a third party. The defendant auction-purchaser pleaded that the mortgage, upon which the plaintiffs sued, was a fictitious and collusive mortgage, which had been executed by the judgment-debtors in favour of their relations with a view to defrauding their creditors. The lower Courts both held that the auction-purchaser, having bought subject to the mortgage, was not entitled to raise this plea. The question before me is whether this view was a correct one or not. It appears that when the property was attached in execution of the decree, the mortgagees asserted their mortgage and obtained an order in their favour under Section 282 of Act XIV of 1882, after what the lower appellate Court, which had the record before it, describes as 'a full contest.' It was contended on behalf of the respondents here, who are the plaintiffs-mortgagees, that as a consequence of the decision given under Section 282 the property was sold 'subject to' the mortgage; and that being so, the auction-purchaser, who could have bought nothing more than the equity of redemption, was not entitled to question, in the present suit the validity of the mortgage, which had been already adjudicated on. It was contended, on the other hand, that the property in question was not sold 'subject to' the mortgage within the meaning of Section 282; but that it was sold with a notification of an 'incumbrance' to which it was liable, within the meaning of Clause (c) of Section 287 of Act XIV of 1882, the incumbrance being the mortgage in question. It is not disputed that if the property was sold 'subject to' the mortgage within the meaning of Section 282, the defence, which the auction-purchaser wished to raise to the present suit, was not open to him. This admission was necessitated by the decision in the case of Shib Kunwar Singh v. Sheo Prasad Singh 28 A. 418 : A.W.N. (1906) 68 : 3 A.L.J. 200, where their Lordships Mr. Justice Banerji and Mr. Justice Richards observe as follows: 'The Code of Civil Procedure clearly makes a distinction between a case in which property is sold subject to a mortgage and a case in which notice of an alleged mortgage is given in the proclamation of sale. The former is provided for by Section 282, and the latter by Section 287. In the former case 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. In the latter he buys the property with notice of the mortgage and subject to such risks which the notice might involve. The Court does not decide whether the mortgage subsists or not.'
2. With a view to ascertaining whether the lower Courts were right in holding that the property had been put up to sale subject to the mortgage, I sent for the execution record. From an inspection of both the proclamation of sale and the sale certificate there can, in my opinion, be no doubt that the lower Courts were right, and that the property was sold subject to the mortgage, which had been pronounced valid in a proceeding under Section 282. The sale proclamation is filled in as follows: The description of the property is 'a house.' The names of the judgment-debtors are Ganga Raghunath, Bhagwan Das and Chandu. The judgment-debtors' interest in the property is given as 'detailed below.' The said detail combines the boundaries of the house, which strictly speaking should have been shown in column 2, with the judgment-debtor's interest which was being sold. The combined reference read as follows: 'Boundaries of a Kachcha tiled house situate in Bazar Ghurnwan, Pargana Barhar, district Mirzapur of the value of about Rs. 100. The lien under the document dated 23rd August, 1904 executed by Ganga and Raghunath, judgment-debtors for Rs. 122-6; the remaining purchase money in favour of Bhagwan Das, son of Narain Das and Oudh Behari Lal, son of Bhagwan Das, has been notified. East--house of Ganesh Das and Raghunath Das. West--house of Sahdeo Das and Hanuman Das. North--road and well. South--way and beyond it, field of Musammat Jamuna.'
3. It was argued on behalf of the appellant that because the word used in describing the extent of the judgment-debtors' interest in the property was 'baelan,' I should hold that a notification of an incumbrance under Section 287 of the Code of Civil Procedure was intended and nothing more. It was suggested that had there been an intention to specify the mortgage, with reference to Section 282, the expression used would have been 'ba-matahati.' In my opinion the question must be decided upon a consideration of the facts as a whole and not with reference to any particular word that may have been used. The sale certificate reproduced the passage set out above. Had there been nothing more intended than the proclamation of an incumbrance under Section 287, I do not think that this passage would have found its way into the sale certificate. In the case of Shahziyd-ud-din Abdul Hossein v. Kailash Chandra Shaha 2 C.L.J. 599, it was held that the auction-purchaser, who was the decree-holder, might raise such a defence to a suit on a mortgage brought within one year of the order under Section 282, as the appellant-defendant wished to raise in this case, although he had not brought a suit under Section 283 of the Code. As, however, the auction-purchaser in the present case was not the decree-holder, this ruling has no application. The general question whether an auction-purchaser in the possession of the appellant-defendant is in law entitled to plead in defence to a suit on a mortgage that the mortgage sued on was fraudulent and fictitious, was considered by the Calcutta High Court in the case of Lala Ram Surun Lall v. Musammat Lokebas Kooer 18 W.R. 39. Couch, C.J., then said: 'What is really contended on behalf of the special appellant in this case is, that the plaintiff, who was the purchaser at a sale in execution of a decree of the right, title and interest of the judgment-debtor, is to be considered as having acquired by that purchase not merely the right, title and interest of the judgment-debtor, but any right or title which the judgment-creditor might have to set aside or question the validity of any deeds which had been previously made, even it might be by the judgment-debtor himself. We think that is a proposition, which cannot be supported, and we are not aware of any decision which can be quoted for it.' Further on in the judgment his Lordship added: 'We think there is no ground shown in special appeal for interfering with the decision appealed against. In fact, unless the proposition which we mentioned can be made out, that the plaintiff was put in the position of the creditors, and bought the right of the creditors, there is no ground whatever for this appeal. That not being shown, and not being in our opinion the law, the appeal...must be dismissed.' Having regard to the facts found, this appeal must fail, and it is accordingly dismissed with, costs, including fees on the higher scale in this Court.