1. The only point argued in this appeal turns on the meaning and effect to be given to Section 285 of the old Code of Civil Procedure. It is admitted that when the Court sale (relied on by the plaintiff) in Original Suit No. 268 of 1905 on the file of the Court of the District Munsif of Tinnevelly was held the property was under the attachment of the Court of the Subordinate Judge of Tinnevelly: and the question is whether the said sale is invalid.
2. We entirely concur in the view expressed by Farran, C.J., in Abdul Karim v. Thakordas 22 B.k 88. The sale by the Court of lower jurisdiction being irregular and not invalid the purchaser will take an indefeasible or a defeasible title according in whether he knows or does not know of the irregularity. If he buys bone fide and without notice, his title will be perfect and he will not be affected by the irregularity of the proceedings resulting in the sale.' If he purchases with notice he runs the risk of his purchase being set aside'.
3. The word 'notice' in the above passage may be open to misconstruction: out reading the judgment as a whole we feel no doubt that the learned Judge used it in no technical sense but intended that the test to be applied was, whether the purchaser acted in good faith without being aware, whether by direct and formal notice or otherwise, that his title was liable to be questioned by reason of the superior Court's attachment.
4. The learned District Judge does not seem to have applied his mind to this point: but rather to the question of the legal effect of the notice, Exhibit Q, given to the Court by plaintiff's witness No. 4. It is for the 4th defendant to prove that he was a bona fide purchaser without knowledge: and we can find nothing in the judgment which could be construed into a finding to this effect.
5. We must, therefore, call for a finding on the following issue on the evidence on record: - Was the 4th defendant a bona fide purchaser at the Court sale without knowledge of the pre-existing attachment by the Court of the Subordinate Judge of Tinnevelly?
6. The District Judge should submit his finding within two months from this date and seven days will be allowed for filing objections.
7. In compliance with the order contained in the above judgment, the District Judge of Tinnevelly submitted the following:
8. A finding has been called for on the following issue:
9. Was the 4th defendant a bona fide purchaser at the Court sale without knowledge of the preexisting attachment?
I would answer it in the affirmative.
2. The point has been considered in paragraph 3 of my predecessor's judgment and I have really nothing to add to what he has said in it. No doubt, an application (Exhibit C) was made to stop the sale, but it was disposed of summarily without issue of notice to the parties concerned and there is no ground for concluding that the 4th defendant must have been aware of it. Exhibit Q, again, contains no admission of knowledge of the attachment before the sale. Nor does it by any means, follow that because he knew of the encumbrance (vide Exhibit VI), he must also have been aware of the attachment.
10. The oral evidence establishes nothing more against him. Defendants' 1st witness denies knowledge. Plaintiff's 4th witness imputes it to him and his master, on the ground (a) that he told them (6) that they owned the adjoining land. The second ground is a non-sequitur. As for the first, the time when he told them is uncertain. His words are, I have told them about this also. Muthnkumaraswamy Pillai then filed Exhibit Q.' Strictly construed this means that he told them after the sale. In cross-examination he admits that he did not see defendants' 4th witness before the sale.
3. Defendants' 4th witness has paid the purchase-money and there being nothing to show that he was aware of the attachment, I find that he was a bona fide purchaser without notice.
11. This second appeal coming on for final hearing this day, after the return of the finding of the lower Appellate Court upon the issue referred to it for trial, the Court delivered the following:
12. The order of this Court was perfectly clear that it was the 4th defendant who had to prove that he was a bona fide purchaser at the Court sale without knowledge of the pre-existing attachment of the plaintiff. The plaintiff in his plaint in paragraph 10 imputed knowledge of the attachment to the defendant. That allegation does not appear to have been clearly denied in the written statement of the defendant. He did not go into the witness-box himself. There is no evidence that the 4th defendant purchased the property without knowledge of the pre-existing plaintiff's attachment.' The learned District Judge in submitting his finding seems to have thrown the onus on the plaintiff to show that the 4th defendant was aware of the attachment. He says in paragraph 3 of his finding that the 4th defendant has paid the purchase-money and there being nothing to show that he was aware of the attachment, I find that he was a bona fide purchaser without notice.' The 4th defendant has clearly failed to prove that his purchase was bona fide, without knowledge and without notice. The result is that the suit will be decreed and the 4th defendant will have to pay the plaintiff's costs throughout.