1. This is an appeal brought by the plaintiff against a judgment and decree of Mr. A. N. Bhanot, Subordinate Judge, Delhi, dated the 24th February 1947, dismissing his suit for possession and for mesne profits.
2. The facts which have given rise to this appeal are rather complicated but it is only necessary to give some of the relevant facts. The house in dispute which bears No. 2181 was purchased by Abdul Alim defendant No. 1 and his two brothers Abdul Hafiz and Abdul Matin who are not parties to the present proceedings. On the 26th July 1928 Abdul Alim mortgaged his share of the house and some other property to Mohammad Saeed for Rs. 5,000/-. This mortgage was with possession the terms of which are given in a Full Bench decision of the Lahore High Court which is printed at page 51 of the supplementary paper book and they are as follows :
'I have now mortgaged with possession the entire aforesaid property for Rs. 5,000/-. I agree to pay profit at the rate of Re. 1/- per cent, per mensem and the mortgage-money within two years.....Having removed my proprietary possession over the mortgaged property I put the mortgagee in possession thereof by executing a separate lease for Rs. 50/- on account of profit on the mortgage-money. The conditions are:
1. I will pay profit to the mortgagee according to lunar months and secure receiptsfrom him.
2. I will pay the principal mortgage-money in the lump within the period specified above any time I like and redeem the mortgaged property.
3. If I fail to pay the amount of profit monthly and it falls in arrears for three successive months. I will pay it to the mortgagee at the rate of Rs. 1/4/- per cent, per mensem instead of Re. 1/- per cent, per mensem from date of the first default till its entire payment. In case of non-payment of the profit for three successive months the mortgagee shall be entitled either to cancel the period specified in the deed and recover in supersession of the agreement the entire amount of the mortgage-money and profit due to him in the lump in the first place from the aforesaid mortgaged property and in case of deficiency from me and my other movable and immovable property together with costs of the Court or to maintain the period specified in the deed and recover only the entire profit in arrears by that time at the rate of Rs. 1/4/- per cent, per mensem together with costs of the Court from me and my property of every description.
4. * * * * * 5. If on account of default on my part the mortgagee is compelled to bring a suit I will pay him profit at the rate of Rs. 1/4/-per cent, per mensem on the principal mortgage-money after the passing of the decree till payment of the entire amount due.
6. * * * * 7. So long as I do not pay the entire mortgage-money and profit to the mortgagee Iwill not in any way alienate my entireproperty to any other person.
8. * * * * * 9. * * * * * 10.* * * * * 11. * * * * * 12. * * * * * 13. After the partition of the property themovable and immovable property that willfall to my lot and come into my possessionshall be liable for payment of the mortgage-money and profit.'
3. On the 2nd May 1929 another mortgage was created by Abdul Alim on his share of the house alone for a sum of Rs. 4,000/-, the terms of which were similar. There was a partition of family property between the three brothers and in August 1930 the whole of this house fell to the share of Abdul Alim and therefore under the terms of the mortgage it became substituted for the mortgaged property which was mortgaged under the two deeds of mortgage referred to above.
4. Abdul Alim defendant No. 1 was a partner in a business with some other persons andon the 30th January 1937 in a final decree for accounts passed by Mr. Ijaz Ahmad, Senior Subordinate Judge, he was held liable for a sum of Rs. 39,000/-, but appeal being taken to the High Court at Lahore the amount was reduced to Rs. 6,000/- and costs. Execution was taken out and the right, title and interest of Abdul Alim was purchased by Abdul Basit, the plaintiff, on the 8th July 1939. The sale was confirmed on the 16th August 1939 and a sale certificate was issued but it bears the date 2nd November 1939. Thus under Section 65 of the Code of Civil Procedure the plaintiff got vested in him the right, title and interest of Abdul Alim defendant No. 1.
5. Three sets of suits were brought by Man-zooma Khatoon, the wife of Alim, in regard to her right of dower but we are not concerned with those litigations. I may only mention that they all ended against the claim made by Man-zooma Khatoon.
6. Under Order XXI, Rule 95 Abdul Basit on the 26th June 1943 applied for possession of the house. This was dismissed by the executing Court as barred by time and an appeal taken to the District Judge and a second appeal to the Lahore High Court ended against Abdul Basit.
7. On the 1st August 1940 Mohammad Saeed brought a suit to enforce the mortgage. The defendants in that suit were Abdul Alim and Abdul Basit. While this suit was pending Mohammad Rafi purchased the mortgagee rights of Mohammad Saeed for a sum of Rs. 10,000/-and he was substituted in his place. This suit was dismissed on the 1st June 1943. On an appeal being taken to the High Court it was held that the mortgages were valid, that the security under the mortgages was of the whole house and that the house could be sold in execution as the mortgage was an anomalous mortgage. I may state that this last question as to what was the nature of the mortgage had to be referred to a Full Bench* which gave its opinion on the 9th October 1945 and a preliminary decree for sale was passed on the 3rd December 1945 for Rs. 13,256/4/- with interest at 12 per cent, and the payment was to be made by the 3-6-1946. An appeal was sought to be taken to the Privy Council but it did not materialize as the printing fees were not paid although leave had been granted and these proceedings finally came to an end on the 27th December 1948.
8. The suit out of which this appeal has arisen was brought by Abdul Basit on the 28th June 1944. In this suit he claimed possession of the house in dispute and a decree for mesne profits of Rs. 3,240/-. After two amendments the finally amended plaint was filed in Court on the 26th February 1946 and is printed at page 30 of the printed paper book. Several pleas were taken by the defendants who were Abdul Alim defendant No. 1, his wife Man-zooma Khatoon defendant No. 2 and Mohammad Rafi the mortgagee defendant No. 3. It is not necessary to refer to these various pleas and I need only give the decision of the trial Court by which the suit was dismissed. The learned Judge decided two issues against the plaintiff. The first one was that the suit was not maintainable by the plaintiff without his paying into Court the amount of the mortgage decree which had been passed in favour ofMohammad Rafi and the second point decided against the plaintiff was that he could not obtain possession as his title had not been perfected because of the fact that he did not take symbolical possession after the sale had been confirmed in his favour. The plaintiff has come up in appeal to this Court.
9. Mohammad Rafi defendant No. 3 took out execution in his mortgage decree and purchased in execution the house in dispute on the 22nd May 1950 which is shown by a sale certificate which has been placed on the record of this appeal.
10. After the dismissal of the suit while the appeal was pending in this Court Abdul Basit brought a suit on the 2nd June 1950 for a declaration that he was the real owner of the mortgagee rights and that Mohammad Ran who was his brother-in-law was merely a 'benami-dar.' The matter was referred to an arbitrator who gave an award on the 9th July 1950 holding that the real owner of the mortgagee rights was the plaintiff Abdul Basit and Mohammad Raft was only a 'benamidar.' On the 18th August 1950 a judgment and decree followed on this award, and as a result of this Abdul Basit, the present plaintiff appellant has become the owner of the mortgagee rights and he was already the owner of the equity of redemption.
11. The first question to be decided is whether for the decision of the appeal we shouldtake into consideration subsequent facts whichhave come into existence after the decision ofthe suit and before the appeal or we are confined to the facts as they were presented tothe trial Court. It has been held by the Federal Court in -- 'Lachmeshwar Prasad Shukul v,Keshwar Lal', 1940 F.C.R. 84, that the appeal isa rehearing and the facts and changes in thelaw which have come into existence since theappeal was filed should be taken into consideration for the purpose of deciding the appeal. In-- 'K.C. Mukherjee v. Mt. Ram Ratan Kuer',63 Ind. App. 47 (P.C.), the report of the arguments shows that -- 'Quilter v. Mapleson',(1883) 9 Q.B.D. 672, was referred to, and LordThankerton observed that the duty of a Courtis to administer the law of the land at the datewhen the Court is administering it. The learnedChief Justice at page 87 of the report '1940F.C.R. 84' stated as follows:
'.....but, with regard to the question whether the Court is entitled to take into accountlegislative changes since the decision underappeal was given, I desire to point out thatthe rule adopted by the Supreme Court ofthe United States is the same as that whichI think commends itself to all three membersof this Court. In -- 'Patterson v. State ofAlabama', (1934) 294 U.S. 600, at p. 607,Hughes C. J. said:
'We have frequently held that in the exerciseof our appellate jurisdiction we have powernot only to correct error in the judgmentunder review but to make such dispositionof the case as justice requires. And indetermining what justice does require, theCourt is bound to consider any change,either in fact or in law, which has supervened since the judgment was entered.' This view of its powers was re-affirmed bythe Court in a case decided as recently asMarch last: -- 'Minnesota v. National TeaCo.', (1940) 309 U.S. 551, at p. 555.'
Even previous to this the power of a Court ofAppeal to take cognizance of facts which havehappened since the date of the judgment of the Court below has been widely recognized. Tha-yer, J., in -- 'Ransom v. City of Pierre', 41 C.C.A. 585, 101 R.F. 665, said:
'It is the duty of the Court which still retains control of the judgment, to take such action, as will shorten litigation, preserve the rights of both parties and best subserve the ends of justice.'
In -- 'Lawrence P. Mills v. Green', (1895) 159 U.S. 651, Gray J., in delivering the opinion of the nine Judges of the Supreme Court of the United States, affirmed the doctrine that it is not only in the power, but it may sometimes be the duty of a Court of Appeal to take notice of events which have happened during the pendency of the appeal and that such events when not appearing on the record may be proved by extrinsic evidence. As illustrations of cases in India in which the Court has taken cognizance of events since the filing of a suit or appeal, reference may be made to -- 'Saknaram v. Hari', 6 Bom. 113 and -- 'Sangili v. Mooken', 16 Mad. 350, where upon the death of a party to a suit for partition during the pendency of an appeal, the Court was obliged to alter the shares and allotments. In -- 'Rustomji v. Pur-shotam Das', 25 Bom. 606, the Court varied the decree of the first Court by reason of events which had happened during the pendency of the appeal. So also in -- 'Balkishen v. Kishan Lal', 11 All. 148. This principle has been applied in -- 'Chinta Haran v. Radha Charan', 37 Ind. Cas. 962, -- 'Ram Ratan Sahu v. Bishun Chand', 11 Cal. W. N. 732 and -- 'Narayan v. Mt. Tulshi', 80 Ind. Cas. 607. The same was held in -- 'Rai Charan v. Biswa Nath', 20 Cal. L. J. 107, -- 'Nuri Mian v. Ambica Singh', 44 Cal. 47, and -- 'Dera Sadh Bishnois v. Basti Ram', 42 Pun. L. R. 168. See also Order VII, Rule 7 of the Code of Civil Procedure. Therefore this appeal will have to be decided in the light of facts which came into existence later, that is, after the suit was decided by Mr. Bha-not.
12. The learned Judge held' that the suit was not maintainable and a conditional decree .in favour of the plaintiff on his paying decretal amount in Court could also not be passed loses all force because of the subsequent decree which has come into existence. Abdul Basit has been declared to be the owner of the mortgagee rights as well as of the equity of redemption. Mohammad Rafi is a party to the appeal and his counsel has admitted that he has no rights left in the property and therefore one of the grounds on which the suit was dismissed by the learned trial Judge vanishes and even if on the facts as they were before the trial Court, the judgment is correct, on which I give no opinion, the plea 011 which that point was decided is no longer available to the defendants.
13. The next point on which the judgment went against the plaintiff was that his title was not perfected until he obtained symbolical possession of the property. In my opinion the learned Judge was in error in this point. The scheme of Order XXI of the Civil Procedure Code shows that under Rule 92 the sale becomes absolute if no objections are filed or if the objections are dismissed. Rule 94 provides for the grant of a certificate specifying the property sold to the auction-purchaser and it has to bear the date when the sale became absolute. Under Rule 95 an auction-purchaser after the sale has become absolute and salecertificate granted can apply tor possession of the property purchased, and there are other provisions in later rules which deal with the question as to what is to happen if any obstruction is placed or caused in his getting possession. It is true that the auction-purchaser in this case, Abdul Basit, did not get symbolical or actual possession, but the title of an auction-purchaser becomes perfect not from the date of his getting symbolical possession but from the date when the property is sold. This is provided for under Section 65 of the Code of Civil Procedure. Under the Code of 1859 a purchaser of immovable property at a Court-sale could not maintain a suit for possession against a third person unless he obtained a certificateof sale, but even under that Code as againstthe judgment-debtor and his representatives the purchaser's title became complete on the confirmation of the sale, see -- 'Raj Kishen v. Radha Madhub', 21 W.R. 349 (Cal), -- 'Khushal v. Bhimabai', 12 Bom. 589, and -- 'Shivaram v. Ravji', 7 Bom. 254. Under the present section, however, as has been stated by Mulla at page 265 of his Code of Civil Procedure, an auction-purchaser can maintain a suit for possession against a third party after the sale is confirmed even though no certificate has been issued, provided it is produced at or before thepassing of the decree. The reason is that the property under the present section vests in the purchaser immediately after the sale is confirmed by the Court and vesting is not postponed until after the grant of the certificate.
14. Another argument which has been put forward by appellant's advocate is that under Article 138 of the Limitation Act the timebegins to run against an auction-purchaser, when the suit is brought against a judgment-debtor in possession, from the date when the sale becomes absolute and when symbolical possession has been obtained the Article appli-cale is Article 144 of the Limitation Act. Two rulings have been relied upon by the learnedtrial Judge. The first is -- 'Ram Chand v. Jana', A.I.R. 1921 Lah. 236 (2). That was acase of co-sharers and the matter was under Order XXI, Rule 36 of the Civil Procedure-Code, and the second one is also a Single Bench case -- 'Ram Chand v. Gopal Singh', A.I.R. 1930 Lah. 914, where no doubt it was said that an auction-purchaser purchasing judgment-debtor's share in joint property obtained a perfect title from the date of obtaining sym-bolical possession followng such sale. But the suit was for possession by partition by the purchaser of a share of the house and the question was whether the time begins to run fromthe date of the confirmation of sale or of the date of taking symbolical possession which was in fact taken. The facts were quite different and the observations of the learned Judge were obiter. With great respect I am unableto agree that these observations lay down the rule correctly for reasons which I have already stated. I am therefore of the opinion that the finding of the learned Judge on this point iserroneous.
15. For reasons that I have stated above I would allow this appeal, set aside the decree of the trial Court and decree the plaintiff's suit for possession only, but in the circumstances of this case the parties will bear their own costs throughout.
16. I agree.