1. The plaintiffs in this suit were judgment-debtors in a mortgage decree. The property which was mortgaged was 3/4th biswas in certain khatas, and a decree for sale was passed against that share. By mistake in the sale proclamation the property was stated to be 1 1/4 biswas in accordance with the claim previously made by the mortgagee and successfully contested in the Court. In accordance with the sale proclamation a share of 1 1/4 biswas was sold and purchased by a third party. No objection was made at the time by the judgment-debtors, and they subsequently filed this suit The object of the suit is to recover that portion of the property which was sold in excess of the 3/4th biswas included in the mortgage. The plaintiffs have been successful in two Courts, and the auction-purchasers come before this Court in second appeal, alleging that the suit was barred by Order 21, Rule 92, Civil P.C. and that it was further barred by limitation. The cases on which the appellant relies are not of the Allahabad High Court with the exception of one reported in Imtiaz-un-nissa, v. Chuttan Lal : AIR1925All236 . In that case, as in the others relied upon by the appellant, it is taken for granted that the judgment-debtors could and should have made an objection when the property was wrongly proclaimed for sale. In this case there is a finding of the first Court that the judgment-debtors had no notice, and no knowledge of the sale, and this finding was not challenged in first appeal. It is too late for the appellant now to argue in this Court that the sale must be presumed to have taken place with the plaintiffs' knowledge and that they are estopped from questioning its validity. On the finding of the first Court, acquiesced in by the appellant in first appeal, there can be no question of estoppel.
2. It was held by a Bench of this Court in the case of Bulaki Das v. Kesri : AIR1928All363 , that where a judgment-debtor brings a suit to recover possession of a certain property (other than mortgaged property) wrongly included in the auction-sale by the mortgagee in execution of his mortgage-decree, and purchased by the mortgagee himself, the suit is not barred under Order 21, Rule 92. A fortiori the same finding applies to the case where the purchaser is not the mortgagee. In the same ruling it was held that the sale of the property which had not been mortgaged was a nullity, as it was not justified by the decree, and as such no question of limitation under Article 12, Lim. Act, arises. The case reported appears to me to be exactly parallel to the case before me so far as these findings are concerned.
3. In my opinion the plaintiffs' suit is barred neither by limitation nor by Order 21, Rule 92, Civil P.C. The last point raised is that the purchaser should be entitled to get back a portion of his purchase money. But I am not aware of any provision of law which could justify me in passing such an order. Such a plea could only be raised where the judgment-debtor was in some way in fault. Here there is a clear finding that the judgment-debtor knew nothing of the sale and he has taken the only means open to him to recover a portion of his property which has been wrongly sold. There is no question of laying blame on either side; but the rule which must decide a case of this sort is caveat emptor. I dismiss this appeal with costs.