1. This is a Letters Patent appeal against a judgment of a learned single Judge of this Court, who dismissed the plaintiff-appellant's suit and thereby restored the decree of the first Court.
2. It appears that the respondent Pearey Lal held a mortgage, made in his favour, on 12th of May, 1904, by two persons Mahbub Ali and Shahzadi Begum. These judgment-debtors mortgaged certain specified shares as their property with Pearey Lal. In due course Pearey Lal brought his suit for sale, and to that suit he made parties not only the judgment-debtors themselves but also their representatives, among whom were included the present plaintiff's father Gauga Sahai, who was impleaded on the ground that he had purchased a portion of the mortgaged property. At some stage of the suit Ganga Sahai died, and in his place the appellant's name was substituted as a party. The decree that was passed was in respect of '5 sihams with the exception of the property mortgaged under the deed of 6th of February, 1904, and sold in decree No. 157 Sultan Begam.'
3. After obtaining a final decree for sale Pearey Lal proceeded to bring the property to sale. In doing so, he described the property ordered to be sold in specific areas. It has been found by the lower Appellate Court that the area which Pearey Lal was entitled to sell was really 40 bighas and odd and by a calculation, which went entirely in favour of Pearey Lal, would not exceed 85 bighas, in any case. Pearey Lal, as a matter of fact, described the property ordered to be sold by the decree as covering an area of 118 bighas. With this description, however, which, it appears was unchallenged on behalf of Kishen Lal the appellant, the property was brought to sale and was purchased by Pearey Lal himself.
4. After a sale certificate had been granted to Pearey Lal, Kishen Lal took two steps to contest this sale, He proceeded under Section 47 of the Code of Civil Procedure by an application to the execution Court, the object being to recover what, according to him, was an excess area obtained by Pearey Lal under cover of the sale. The second proceeding which the plaintiff started was by way of a suit, and it is this suit which is, in the shape of a Letters Patent Appeal, before us. The proceeding under Section 47 of the Civil Procedure Code was decided on the merits, and the decision was upheld by the High Court. The Subordinate Judge found that the objector before him, namely, Kishen Lal, had failed to prove that the area sold was more than the area comprised in the share ordered to be sold. The lower Appellate Court in the appeal, which arose out of the suit, held that Section 47 did not bar the suit and that, actually more property had been sold than could, legitimately, be sold under the terms of the decree.
5. The only question before us is whether this suit is maintainable.
6. A large number of cases has been cited before us. We, however, think that no useful purpose would be served by discussing these cases, The judgments in these cases were influenced more or less by the facts peculiar to those cases. The important case to notice is a Full Bench case of this Court, namely, Bhagwati v. Banwari Lal 1 Ind. Cas. 416 : 31 A. 82 : 6 A.L.J. 71 : 5 M.L.T. 185, where a majority of the Judges constituting the Bench held that a decree-holder, who happens to purchase at the auction-sale, does not continue to be a decree holder, for the purpose of obtaining possession, from the judgment-debtor, of the property which was sold to him (the decree-holder).
7. In our opinion, this case has to be decided having regard to the facts of the case as already described above. When Pearey Lal proceeded to describe the property to be sold as consisting of 118 bighas that was the time when any person interested in the property to be sold should have appeared and contested this description. Let us take the following case, A decree directs certain house property to be sold and describes the same as lying within certain boundaries. To make the description clear to the intending purchasers the decree-holder says, let us take it, in his application for execution, that the boundaries cover houses Nos.3, 4 and 5 situated on Canning Road in Allahabad. If this description is allowed to stand and if no objection is taken to this description and the property is sold under that description, no judgment debtor will be allowed to come forward after the sale and say that one of the houses was not really covered by the boundaries. It matters little whether the judgment debtor appears and contests the description and fails to substantiate his plea, or whether he keeps silent and does not come before the Court at all. When the Court, by its order of sale, directs the property to be sold under the new description given by the decree-holder, it must be taken that the Court accepts that description as a correct description and makes an order for sale of the property as there described. This is exactly what has happened in this case. Pearey Lal said that the 5 sihams ordered to be sold, and as described in the decree, corresponded to 118 bighas of area on the spot. If this was not so, it was for the appellant before us to appear in Court to say that the area was really in excess of the area which Pearey Lal was authorised by the decree to sell. It was a case of description and nothing else. If the property has been sold under the description adopted by the Court, it cannot be open to one of the judgment-debtors, who had had an opportunity to appear before the Court and contest the description, to come in, after the sale, either by way of an application under Section 47 of the Civil Procedure Code or by a suit, to contest that description.
8. In this view of the case the appellant is really estopped by the ex parte order of the executing Court from contesting the description of the property. In our view, the decree of the Court of first instance, as upheld by the learned Judge of this Court, is a correct decree, and we dismiss this appeal with costs.