1. The appellant, who is the plaintiff in the suit, purchased certain lands in a court sale upon a mortgage decree. He alleged in the pLalnt that he obtained delivery of this property through Court but that he was dispossessed a month later by the defendant. He now sues to recover possession of the property from the mortgagor (defendant) and for an injunction against further interference by the latter.
2. The suit was dismissed in the first Court on the ground that the sale was invalid, and on appeal the District Judge confirmed the District Munsif's decree. It was also found that the plaintiff had not obtained possession of the lands in suit and that his allegation of trespass was untrue. In second appeal it is contended that the defendant is debarred by res judicata from questioning the correctness of the sale and also that he is debarred under S? 47, C.P.C., from raising a question relating to execution in this suit.
3. It appears that after the sale took place the defendant appealed under Order 21, Rule 89 to have the sale set aside on making a deposit as required by that rule, and that he was unsuccessful in that application. Afterwards he applied under Rule 90 of the same Order to.have the sale set aside on account of irregularity and fraud, and upon this the order of the executing Court was that his application Was too late. The defendant's contention is that the lands described in the sale certificate given to the auction purchaser (plaintiff) are not either included in the mortgage or in the decree passed in the mortgage suit, and that this is so, has not been seriously disputed. The appellant's pleader urged that the defendant having once applied to have the sale set aside and having failed was bound by res judicata from raising the contention that the sale was invalid even though his application was dismissed upon the ground that he was out of time without a determination of the question relating to the validity of the sale. He has however failed to show us how this case comes within the rule of res judicata as defined in Section 11, C.P.C. It is quite clear that there was no adjudication upon the substantial question raised in the defendant's petition as to the validity of the sale and therefore it cannot be deemed to have been a matter directly and substantially in issue in any prior proceedings.
4. As regards the contention that Section 47, C.P.C., is a bar to the defendant's plea in this suit the respondent's pleader has brought to our notice the case of Venkatarama Chariar v. Meenatchi Sundaramaiyar (1908) 19 M.L.J. 1 which is a direct authority both. on this point and on the point of res judicata. That was a similar case to this in which certain lands were sold under a mortgage decree and a sale-certificate was given in respect of other lands not included in the mortgage or in the decree. The plaintiff having contended that it was not open to the defendant to raise the defence that certain items of property mentioned in the sale certificate were not in fact compromised in the mortgage or in the decree the Chief Justice Sir Arnold White, and Davies, J. observed that the effect of Section 244 was to debar the plaintiff from bringing a suit for the determination of a question relating to the execution, discharge or satisfication of a decree which had arisen between himself and the defendant as parties to the suit, in which the decree was obtained, but not to debar the defendant from setting up by way of defence a matter which related to the execution, discharge or satisfaction of a decree obtained in a suit to which he and the plaintiff were parties. In support of this view they quoted two cases of the Calcutta High Court Bikram All Shaik v. Gopi Kanth Shaha I.L.R(1897) . Cal. 355 and Nilkamal Mukerjee v. Jahnabi Chowdhurani I.L.R.(1890) Cal. 946 in which a similar view was taken in respect of Section 244 corresponding to Section 47 of the present Procedure Code. Again in Thathu Naick v. Kondu Reddi I.L.R(1909) . Mad. 242 two learned Judges of this Court out of three, held that a sale could be impeached in case of fraud discovered after the confirmation of the sale and that the defendant could raise this contention by way of answer to the plaintiff's claim upon the strength of the sale in his favour. The only exception which in Sankaran Nair, J's opinion might arise would be if the defendant was estopped or otherwise barred by any rule of law from putting forward his claim.
5. Now on the facts of the present case the appellant's pleader has not shown that any estoppel arises or that the defendant is barred by any rule of law. He relied on two decisions to which I was a party. One is that in Annabatula Venkataratnam v. Annabattula Nayudu (1915) 28 I.C. 906 and the other is in Venkatachalapathy Aiyar v. Perumal Aiyan (1912) M.W.N. 44 . In the former case what was decided was that an order passed in execution by which both parties were bound, refusing to recognise an assignment of a decree, which had not been appealed against could not be challenged in a subsequent suit. It is not a decision on the point whether a defendant can put forward a plea in answer to a suit when if he were in the position of the plaintiff he would be debarred from suing on the ground that that plea involved a matter relating to the execution, discharge or satisfaction of the decree. In the Madras Weekly Notes case an order was made for sale in execution of a mortgage decree directing the first defendant's rights in his own property to be sold and they were sold accordingly. The order was made apparently under Section 87 of the Transfer of Property Act. The judgment states that the question in that suit was as to the construction of the decree passed?., in favour of the sub-mortgagee. It was held that the plaintiff was entitled to enforce the rights obtained under the sale as the defendants had not taken steps to set it aside. It also appears that in that case the defendants were bound by the order passed against them under Section 89 of the Transfer of Property Act. In the present case the circumstances are different. Here the sale-certificate was in contravention of the decree and of the terms of the mortgage as it included properties not covered by the mortgage or the decree. The defendant pleads fraud in drawing up the sale certificates and the Lower Courts have found that this plea is good. Defendant does not now ask to have the sale set aside and there is no provision of law requiring him to get the sale set aside on the grounds of material irregularity before allowing him to plead fraud in answer to the plaintiff's claim for possession of property of which he,' the defendant, is the present possessor. The second appeal therefore fails and is dimissed with costs.
6. I agree. The ruling in Bhiran Ali Shaik v. Gopi Kanth Shaha I.L.R.(1197) Cal. 355 and Nil Karnal Mukerjee v. Jahnabi Chowdhurani I.L.R.(1899) Cal. 946 followed and approved in Venkatramachariar v. Meenatchi Sundaramaiyer (1908) 19 M.L.J. 1 clearly lay down that the defence set up in this case is maintainable and although they seem to have the result of making the finality of the sale depend on whether the auction purchaser gets possession or not, I am not prepared to dissent from them. The judgment in Nadamuni Narayana Iyengar v. Vccrabadra Pillai I.L.R(1910) . Mad. 417 tends the other way, but in that case the suit was brought by the judgment-debtor against the auction purchaser and the cases above referred to were not considered.