Prinsep and Ghose, JJ.
1. These two cases were tried together by the lower Court and also by us in appeal by consent of parties, because in some respects the same facts arise in both of them. In both cases the plaintiffs, as purchasers from mortgagors, seek to avoid the effect of the same mortgage decree as affecting their properties. The plaintiffs in each case hold separate properties; but the main points raised in the cases and the circumstances upon which their titles depend are in some respects similar. The mortgage decree was obtained on the 30th July 1875 by one Manson. While that suit was pending and before the decree was delivered, the share of one of the three mortgagors in a portion of the mortgaged property was attached in execution of a money decree, and on the 21st July 1875, was, in execution of that decree, sold to Kali Chunder Chowdhry, the father of the plaintiff in Appeal No. 103. Possession was given to that purchaser, on the 26th September 1877, through the Court. The plaintiff, in the other case, bought privately some of the mortgaged properties from the three mortgagors and also from Mohesh, another member of the family, after the mortgage decree had been delivered. The positions of the two purchasers are, therefore, different both in respect to the nature of the purchases and the time during which they were made.
2. On the 13th August 1878 (that is, 29th Srabun 1285), the mortgagee having died and his estate being in the hands of the Administrator-General, the decree was sold by that officer to Gour Sundar Lahiri, defendant No. 1 in both these cases. Whether Gour Sundar Lahiri was the real purchaser or a purchaser representing others is one of the principal points for our decision in these cases. When the mortgage decree was sold, it would seem that it was then under execution. After this sale, several applications were made to execute this decree after substitution of the name of the assignee for that of the original decree-holder, but in none of these applications was any further step taken towards execution of the decree or any order made for substitution of the name of the assignee. On the 18th July 1885, after notice to the judgment debtors, the name of Gour Sundar Lahiri was substituted for that of the original decree-holder, and proceedings in execution commenced by attachment of some of the mortgaged properties. Claims were thereupon made by the two plaintiffs in the suits before us, but their objections were disallowed on the 3rd February 1886, the Subordinate Judge holding that the purchases made conferred titles subject to the mortgage, and were, therefore, inadmissible under Section 278, the claimants having only the right to redeem the mortgage by paying the amount due to the mortgagee. The two suits now before us were accordingly brought by these parties, the plaintiffs asking for decrees declaring their right to hold the properties purchased by them free of the mortgage for various reasons, which will be presently considered, or for any other relief which the Court might think proper and just.
3. The Subordinate Judge has given both plaintiffs a decree.
4. In appeal, it is first contended that the plaintiffs have no right to sue by reason of Section 244 of the Code of Civil Procedure, inasmuch as they were representatives of the original judgment-debtor. The position of the two plaintiffs is entirely different so far as they are affected by the operation of this section. The plaintiff Hem Chunder Chowdhry (in appeal No. 103) is a purchaser in execution of a money decree against the mortgagors. He is, consequently, not a voluntary purchaser, and, as has been held by their Lordships of the Judicial Committee of the Privy Council, his title is not one of privity with the mortgagors, but in some respects adverse to them. We think, therefore, that he cannot be considered as a representative of the judgment-debtors, mortgagors, within the terms of Section 244. The cases to which we refer are Dinendronath Sannyal v. Raj Coomar Ghose L.R. 8 I.A. 65 : I.L.R. 7 Cal. 107, Anund-moyee Dossee v. Dhonendro Chunder Mookerjee 14 Moore's I.A. 101; 8 B.L.R. 122; and we may also refer to the case of Lalla Prabhulnl v. Mylne I.L.R. 14 Cal. 401. Mr. Bell, for the appellants, however, contends that, inasmuch as the plaintiffs purchased pendente lite, and are therefore bound by the mortgage decree, they are similarly bound, without being formally placed on the record or receiving any notice of the proceedings taken in execution, in all proceedings up to the satisfaction of the decree. He particularly refers to the order of the 18th July 1885, under which the name of the purchaser of the mortgage decree, Gour Sundar Lahiri, was placed on the record under Section 232 as assignee of the decree. It is contended that a notice under Section 232 to the judgment-debtors is binding on a purchaser pendente lite, and that, consequently, the order so passed precludes the plaintiff from bringing a suit to contest the validity of that mortgage. It has already been stated why we consider that in Appeal No. 103 the plaintiff is not the representative of the judgment-debtor within the terms of Section 244, In this particular instance, there are, however, other reasons which, in our opinion, prevent us from holding that he as well as the plaintiff in the other case was bound by the terms of that order.
5. The proceeding in execution then before the Courts cannot, in our opinion, be regarded as a bona fide proceeding. Gour Sundar Lahiri was, in our opinion, not the real purchaser of the mortgage decree, but was only a name representing others, viz., the judgment-debtors, and possibly Mohesh Bhaduri,their brother. Whether the transaction was one including only the judgment-debtors or also Mohesh Bhaduri is not material for the purposes of deciding this matter. It is sufficient to say, for reasons which will be presently given, that we consider that the purchase by Gour Sundar Lahiri was not a transaction for his own benefit, but for the benefit of the judgment-debtors. In this view, the application of Gour Sundar Lahiri-that his name should be substituted for that of the decree-holder as assignee of the decree under Section 232, and asking the Court to pass an order for such substitution-was a sham. It amounted to the judgment-debtors asking the Court for service of a notice on themselves. If the real position of the parties had been made known to the Subordinate Judge, there can be no doubt that he would have refused to recognize such an assignment or to issue the notice required by Section 232. We, accordingly, hold that the plaintiffs are not precluded in these suits from questioning the validity of the order passed under Section 232.
6. It now becomes necessary to consider, first, the evidence regarding the character of the purchase made by Gour Sundar Lahiri of the mortgage decree, and next, how far the execution of that decree as against the plaintiff is barred by limitation. The evidence of Gour Sunder himself is most important as showing the nature of his purchase. He is, no doubt, a man of insignificant means, but it is not improbable that he had sufficient money, but not much more than sufficient, to have bought this decree, He is a relation of the judgment-debtors, and admits that he is perfectly ignorant of the nature of his purchase; that he has taken no steps to make himself acquainted with what he purchased; that he delayed several years to take any real steps to reap any benefit from his purchase; and, lastly, that even now he is not prepared to execute his decree against the mortgagors. He also admits that he has taken very little interest in defending these suits. All these, we are asked to believe, are the acts of one who, even if he could have found means to purchase a mortgage decree, undoubtedly would have left to himself very little other money after such a purchase. We have next the evidence of mookhtears who were consulted in matters connected with this purchase and with proceedings taken in execution of the decree after the purchase. The principal person employed, Janoki Nath Bose, distinctly declares that he never acted for or was consulted by Gour Sundar Lahiri; that the persons with whom he was in communication throughout were the mortgagors or some one of them, or Mohesh, their brother, acting on their behalf. There has been much argument addressed to us regarding the order of the Subordinate Judge, admitting, as evidence in this case, certain letters purporting to have been written by Mohesh Bhaduri to this witness. Independently of those letters, we think there is ample evidence to show that Gour Sundar Lahiri was not the actual purchaser of the mortgage decree, and that the Bhaduris, either the mortgagors or the mortgagors with Mohesh, their brother, were the actual purchasers and were the only persons interested in the purchase. There is also evidence, independently of these letters, to show that Mohesh, a member of the family of the mortgagors, has acted on behalf of the other members, the mortgagors, in all these transactions. Upon this ground we think that the letters would be admissible as evidence. But independently of the evidence of these letters, as has been already stated, there is ample evidence on the record to show that Mohesh acted on behalf of the mortgagors, and that Gour Sundar was in no way concerned in the purchase except in regard to the use of his name in the proceedings in execution. For these reasons we hold that the purchase by Gour Sundar Lahiri was a matter of fact a benami purchase. That being so, the applications made in his name, in August and December 1880, were not applications made in accordance with the law within the terms of Article 179, Schedule II of the Limitation Act of 1877. We follow the opinion expressed in regard to this section by the learned Judges in the cases of Abdul Kurcem v. Chukhun 5 C.L.R. 253, and Denonath Chuckerbutty v. Lallit Coomar Gangapadhya I.L.R. 9 Cal. 633 : 12 C.L.R. 145, and also in an unreported case Mis. App. 453 of 1885 decided by Wilson and Porter, JJ., on the 20th April 1885. We have been referred to two cases of an earlier date-Puma Chundra Roy v. Abhoya Chunder Boy 4 B.L.R. App. 40,and Nadir Hossein v. Pearoo Thovildarinee 14 B.L.R. 415 in which a contrary opinion was expressed. But we prefer to follow the rule more recently laid down by two Benches of this Court, which is in accordance with the opinion which we ourselves entertain. We, accordingly, hold that a benami purchaser is not competent to make an application under Section 232, and that, consequently, the applications made in August and December 1880 were not applications under the Code of Civil Procedure in accordance with law, so as to prevent the operation of the ordinary law of limitation. It is admitted that had it not been for these applications, the subsequent application for execution in 1885 would have been barred. The result, therefore, is that in respect of Appeal No. 103, although the plaintiff bought in execution of a money decree pendente lite, while proceedings under the mortgage were being taken, and he is, therefore, hound by the decree subsequently passed, that decree has become inoperative by reason of the law of limitation, and therefore the defendant is not entitled to enforce the mortgage as against the plaintiff'. The plaintiff will, consequently, receive a declaratory decree to that effect.
7. The other case stands on different grounds. The plaintiff purchased from the three mortgagors and Mohesh one of the properties previously mortgaged as mentioned in Schedule II of the mortgage decree, after that decree had been delivered. The conveyances are dated 12th March and 18th May 1878. He also advanced Rs. 10,000, on the 13th June of the same year, to the same four persons upon mortgage of another property comprised in that decree. He is, therefore, not only bound by the mortgage decree, but, by reason of his having purchased privately from the mortgagors, must be regarded as in privity with them, and as their representative within the terms of Section 244. He would clearly not be entitled to bring a separate suit, such as he has now done, were there not circumstances in his case which, in our opinion, establish fraud so as to entitle him to relief, and place the case beyond the operation of Section 244.
8. [Their Lordships then went into the circumstances alluded to, which are not material to this report, and concluded]:
We agree, therefore, with the Subordinate Judge that the plaintiff is entitled to a decree declaring that the mortgage decree cannot be executed in respect to Ekdhala which has been purchased by him.
9. The appeals will, therefore, be both dismissed with costs.