1. The plaintiff in this suit obtained a mortgage decree and in execution, certain property was sold. Under the decree, the share of the 1st defendant alone was made liable; but by some mistake or other, the sale proclamation proclaimed the whole property for sale and the sale certificate certified that the whole property has been sold. In accordance with the sale certificate, the plaintiff applied for delivery of possession. As there was some obstruction, his petition was dismissed. A subsequent petition to remove the obstruction was also dismissed as being out of time. Plaintiff now brings this suit not to recover the whole property but to recover the half-share of his mortgagor after effecting a partition.
2. The lower Courts have dismissed the suit on the ground that it is in effect a suit to obtain the same relief as that asked for by him in execution and as the relief was refused and he has not brought the suit within one year of the date of refusal, the suit is barred under Article 11(a) of the Limitation Act. Both the Courts rely on the decision of the Privy Council, in Baldeo v. Kanhaiyalal  16 N.L.R. 103, holding that the present suit is in effect for the same relief as that asked for in the execution petition. Although there was a mistake in the sale proclamation and the sale certificate, the sale had the legal effect of passing only the 1st defendant's share in the property and plaintiff was not entitled to obtain delivery of the whole property. When, therefore, his application for such delivery was refused, he knew that his application had been rightly refused and there was no necessity for him to get that order set aside provided that he could obtain the remedy to which he was legally entitled, namely, recovery of a half-share in the property. In this view, it seems rather absurd to require the plaintiff to get an order set aside, which he recognized to be a valid order and against which he can adduce no valid objection in order that ho may obtain rights to which he is otherwise entitled, and I think that on this ground the decision in Baldeo v. Kanhaiyalal  16 N.L.R. 103 is not applicable. In that case the plaintiff in effect asked for the same relief in his suit as he had asked for in his application for execution. I do not, therefore, think that the lower Courts were right in holding that the plaintiff is bound to set aside the order within one year and, not having done so, his suit to obtain his relief is barred by limitation.
3. A further objection is taken for the respondent that this suit relates to purely a question of execution and no suit will lie. So far as I am concerned, I am bound by the authority of the case reported in Yelumalai Chetti v. Srinivasa Chetti  29 Mad. 294, in which it was held that a Court cannot, on a mere application for execution by a Court auction-purchaser, enforce his right by an order for partition. It is argued that this case has been wrongly decided and reliance is placed on two cases, one reported in Bhimappa v. Irappa  26 Bom. 146 and the other in Ganapat Rai v. Husaini Begam  19 A.L.J. 53.
4. The latter case no doubt is directly opposed to Yelumalai Chetti v. Srinivasa Chetti  29 Mad. 294; but not only am I bound by Yelumalai Chetti v. Srinivasa Chetti  29 Mad. 294, but with respect, I prefer to adopt that decision rather than that reported in an unauthorised report of the Allahabad High Court.
5. In Bhimappa v. Irappa  26 Bom. 146 it would appear that although prima facie the decision is opposed to that of Yelumalai Chetti v. Srinivasa Chetti  29 Mad. 294 yet on the facts it may be differentiated. Reference is made in the judgment to the decision reported in Bhaguji v. Aniaba  5 Bom. 25 a decision which is not dissented from and from that fact it would appear that the Bombay High Court has not adopted a different principle to this Court. In any event, the decision of a Bench of this Court is binding upon me.
6. The decree of the District Judge must, therefore, be set aside and the suit remanded for fresh disposal.
7. I may add now that the respondent has taken further objection that the facts mentioned above on which the lower Courts' judgments are based are incorrect. He now contends that his client, the 2nd defendant has lost all his right, title and interest in the property by virtue of the auction sale which purported to sell the whole of the property and not merely the 1st defendant's half-share. His argument is that his client was aware of the sale, was a party to the decree in execution of which the sale was held and took no objection to the sale and therefore the sale is binding on his share as well as on the 1st defendant's half share. This point has not been raised before and we have no evidence as to whether these facts are all correct, namely, whether the 2nd defendant had notice of the sale and acquiesced in it and consequently has lost his rights. It will be open to the 2nd defendant to put forward this plea at the retrial of the suit.
8. The stamp fee on the appeal memorandum will be refunded. Costs in this Court will abide the result.