V. Sethuraman, J.
1. The plaintiffs are the appellants. The plaintiffs 1 to 4 are the sons of one Subbier and the fifth plaintiff is the widow. The defendant is the Court auction-purchaser in execution of a money decree against the vendor of Subbier. Subbier died in 1960. The suit properties belonged to the family of one Srinivasa Iyer who was running a bank at Gobichettipalayam. Subbier had transactions with the said Srinivasa Iyer, the banker. The amount of deposit made by Subbier came to about Rs. 9,000 in or about 1958. On 17th October, 1958 Srinivasa Iyer and his eldest son Subbarathnam are alleged to have entered into an agreement t for the sale of the suit properties in favour of Subbier for Rs. 9,000. Subbier was said to have been put in possession of the property on that date. Subbier was alleged to have dealt with the land as his own. However, a sale deed was not executed in favour of Subbier till the death of Srinivasa Iyer. His legal representatives were thereafter called upon to execute a sale deed in favour of Subbier. They did not do so. Therefore, the plaintiffs filed O.S. No. 93 of 1961 on the file of the Sub-Court, Erode, for specific performance of the agreement against the legal representatives of Srinivasa Iyer. The defendants in that suit remained ex parte and there was a decree for specific performance on 17th February, 1962. Two months' time was given for execution of the sale deed by the defendants. As the defendants in O.S. No. 93 of 1961 failed to execute the sale deed even in pursuance of the decree, the sale deed was actually executed by the Court on 16th December, 1966.
2. It appears that a simple money creditor of Srinivasa Iyer filed a suit O.S. No. 72 of 196.1. He attached the properties during the pendency of the suit and brought to sale the plaint schedule properties in execution of the decree in O.S. No. 72 of 196.1. The defendants purchased the properties in the said Court-auction on 4th March, 1965. The sale was confirmed by Court on 8th July, 1965. As the Court-auction-purchaser began to interfere with the plaintiffs' rights to the properties, the plaintiffs came forward with a suit for a declaration and permanent injunction or alternatively for possession of the suit properties.
3. The Court-auction-purchaser who was impleaded as the defendant contested the suit. He claimed that the alleged agreement of sale on 17th October, 1958 in favour of Subbier was an antedated one and not supported by any consideration. He disputed the claim of the plaintiffs that Subbier was put in possession of the plaint schedule properties. He submitted to the Court that the decree in the specific performance suit O.S. No. 93 of 1961 was the result of a fraudulent and collusive transaction between the families of Subbier and Srinivasa Iyer. It was also pointed out that the properties described in the agreement (Exhibit A-1) were not the suit properties that the agreement did not avail the plaintiffs. It was therefore submitted that the plaintiffs were not entitled to the declaration and injunction or possession prayed for.
4. The learned District Munsif held that the agreement for sale under Exhibit A-1 and the decree in O.S. No. 93 of 1961 were valid and that they had not been obtained fraudulently or collusively. He further held that the plaintiffs had got title to the suit lands as owners of the suit lands and that they would be entitled to possession thereof. In view of the fact that the suit lands were in the enjoyment of cultivating tenants, he held that the plaintiffs were not entitled to actual possession. He found that the defendant was in possession of the suit lands by leasing them out to tenants and that therefore, the plaintiffs would not be entitled to permanent injunction. He decreed the suit for declaration and for possession with costs.
5. On appeal by the defendant, the learned Subordinate Judge found that the plaintiffs had not proved that the suit property was covered by Exhibit A-1. He found that the agreement, dated 17th October, 1951 between Subbier and Srinivasa Iyer and his eldest son was neither true, nor valid, nor supported by consideration and that the decree obtained in O.S. No. 93 of 1961 was the result of fraudulent conduct and collusion between the plaintiffs and the heirs of Srinivasa Iyer in that suit. He also held that the plaintiffs were not entitled to declaration and injunction or possession as prayed for.
6. The present appeal has been filed by the plaintiffs who had lost in the lower appellate Court. The main effort of the Learned Counsel for the appellants was to show that the defendant derived his title from Srinivasa Iyer and that therefore, he is bound by the proceedings in O.S. No. 93 of 1961. It was also submitted that under Exhibit A-1 and/or under the decree in O.S. No. 93 of 1961, the plaintiffs had become entitled to the suit properties and that the defendant who derived his title through Srinivasa Iyer is bound by the decree against Srinivasa Iyer himself. For the proposition that the Court-auction-purchaser was a representative of the judgment-debtor the Learned Counsel cited the decision in Kali Dayal v. Umesh Prasad A.I.R. 1922 Pat. 63. It was ruled in that case by a Bench of the Patna High Court that 'The auction-purchaser is the representative of the judgment-debtor and seems to be on the same footing as the person claiming under him.' It was pointed out therein that a person claiming through or under another when he derived his title through that other either by assignment, inheritance or succession or when he held a subordinate title granted by the other, he could have no better title than the person through or under whom he claimed. It was also held that the provisions of Section 11 of the Civil Procedure Code, applied to such cases. If the decree was a valid decree, then in view of the ruling the defendant would be bound by the decree in O.S. No. 93 of 1961. The question is whether the said decree was a valid one and binding on the defendant.
7. Learned Counsel for the respondent drew my attention to the provisions of Section 44 of the Evidence Act and relied on the decision in Tribeni Mishra v. Rampujan : AIR1970Pat13 , in support of the proposition that a decree or order can be challenged on ground of fraud in a collateral proceeding without any suit for setting aside the decree, irrespective of the time when the judgment was delivered or order or decree was passed. Section 44 of the Evidence Act provides that 'Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 43, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.' (italics by me). It is this provision which was construed by the Patna High Court in the case cited. The relevant passage in paragraph 13 which is found extracted in the head note is as follows: ' The right as given by Section 44 has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree etc. set aside by bringing a regular suit for the purpose. A decree or order can be challenged on ground of fraud in a collateral proceeding without any suit for setting aside the decree irrespective of the time when the judgment was delivered or order or decree was passed.' In Bengal Coal Co. Ltd. v. Balmukunda Goenka A.I.R. 1955 N.U.C. G1068, a Bench of the Calcutta High Court has pointed out. 'The plea of res judicata pre-supposes that there is a decree or judgment which has legal existence or validity. If the decree is a nullity and non-existent in the eye of law, no plea of res judicata can be founded upon it, the defendant in the suit in which the decree was passed, just as much as any stranger to the suit, being free under Section 44 of the Evidence Act to show that it is so.' (italics by me). The Calcutta High Court has in this connection considered the impact of Section 11, Civil Procedure Code, also. Unfortunately a fuller text of the judgment is not available. But the principle laid down therein is to my mind quite clear that a stranger is certainly not bound by a judgment obtained by fraud and collusion and I would adopt with respect the principles set out above. The result is that it is possible for the defendant here to show that the earlier proceedings between the legal representatives of Subbier and the legal representatives of Srinivasa Iyer were merely collusive or fraudulent. The fact that the heirs of Srinivasa Iyer remained ex parte in the said proceedings is tell-tale. From the fact that the heirs of Srinivasa Iyer remained ex parte in the said proceedings. I am satisfied that the said proceedings Were only collusive and were initiated with some ulterior motive. Whether a judgment was obtained by fraud or collusion is a question of fact; I see no reason to disturb the finding on such a point of the lower appellate Court on this point.
8. Even assuming that the said decree was not the result of collusion, still I may examine the position whether the plaintiffs have obtained any right in respect of the suit property prior to the defendant's purchase under the Court auction. The suit O.S.No. 93 of 1961 was filed in 196.1, for specific performance. The decree was passed on 17th February, 1962. There was time for two months for executing the sale deed. The legal representatives of Srinivasa Iyer did not do so. Thereafter, a sale deed was executed by the Court only on 16th December, 1966. The question is whether the rights of the plaintiffs started from the passing of the decree or from the execution of the sale deed. On this point, there are two authorities. Even in the case of a private sale until the execution of the sale deed the purchaser does not derive any title to the suit property. It was held by Viswanatha Sastri J., in S. Ramalingam v. G.R. Jagadamntal (1956) An.L.T. 365 : A.I.R. 1957 A.P. 960, that 'in view of Section 54 of the Transfer of Property Act there is no room for the contention that the purchaser becomes in equity the owner of the estate under the contract of sale and the vendor holds the property in trust for him.' Assuming that Exhibit A-1 was a genuine document, the plaintiffs cannot trace their rights back to 1958 as until they got the sale deed in their favour, there was no question pf the property in equity vesting in them. With reference to the Court auction the Mysore High Court in Mrs. Christine v. K. Ugappa : AIR1960Kant299 , has pointed out that the transfer by Court on behalf of the judgment-debtor has all the characteristics of transfer inter vivos, and title passes with the execution and registration of the sale deed and does not flow from decree. All the earlier cases on the point inducing the decision of the Andhra Pradesh High Court cited above have been, reviewed in that case. The law is therefore clear that until the sale deed was executed by the Court the plaintiffs did not derive any title to the suit property. The Court executed the sale deed only on 16th December, 1966. But the Court auction had already been held on 4th March, 1965 and the sale had been confirmed on 8th July, 1965. As pointed out by the Learned Counsel' for the respondent, the whole proceedings for the purpose of getting the sale deed executed in favour, of the plaintiffs through the Court appear to have manocuvred only to get over the Court-auction sale. However, it is unnecessary to go into this point any further. Even assuming that the plaintiffs had got any right under the specific performance suit, still the sale in favour of the plaintiffs would be effective only from 16th December, 1966. As the property had/already been sold by Court, the plaintiffs cannot derive any title under the sale deed executed by the Court. The sale by the Court has to be treated on the same footing as a sale by an individual party as the Court executes the ale deed only on behalf of the party. As the heirs of Srinivasa Iyer could not have conveyed the property in favour of the plaintiffs after the Court-auction similarly, the Court also could not have conferred title on the plaintiffs by executing a sale deed after the Court auction There was no title of Srinivasa Iyer or his heirs to be conveyed, Therefore, there are no merits in the appeal filed by the plaintiffs. It is therefore dismissed. The respondent will be entitled to his costs. No leave.