1. A further point, though not raised in the written statement of the defendants, was raised in argument before the Subordinate Judge, namely, that the plaintiff's objections to the validity of the sale ought to have been preferred and dealt with under Section 244 of the Code of Civil Procedure by the Court executing the decree, and that no separate suit to set aside the sale would lie. This contention the Subordinate Judge overruled.
2. The same objection has now been taken before us, and the decision of a Full Bench of this Court in Mohendro Narain Chaturaj v. Gopal Mondul I.L.R. 17 Cal. 769 is relied on. The facts of that case are similar to those of the present case: indeed they are more favourable to the plaintiff than they are here, because no application to set aside the sale had been made or dealt with prior to the regular suit which was instituted for the purpose of setting it aside. The question referred to the Full Bench was:Whether, when circumstances affecting the validity of a sale have been brought about by fraud of one of the parties to a suit, and give rise to a question between those parties such as, apart from fraud, would be within the provisions of Section 244, a suit will lie on the ground of fraud notwithstanding the provisions of that section?' The Full Bench decided that no such suit would lie.
3. It has been attempted to distinguish the present case from the case which was before the Full Bench in this way. It is said that the sale in the present case was not an ordinary sale of attached property in execution of a decree; that it purports to be a sale in execution of a mortgage decree which directs the sale of the mortgaged property in accordance with the provisions of Sections 88 and 89 of the Transfer of Property Act; but that there is no such decree in existence, as only a decree nisi had been made, and not a decree absolute directing the sale. It was further argued that until a decree absolute is made for the sale of the mortgaged property, the right to redeem exists, and that this might be regarded as a suit to redeem.
4. The answer to the above contentions is that no such objection was taken till the present moment; and it is now too late to take it. We are not in a position to say that the decree or order absolute for sale of the mortgaged property was not made. We cannot suppose that the sale, was held without an order directing it; and if there was an order that would, we think, be sufficient authority under Section 89 of the Transfer of Property Act, even if the order did not take the form of a decree such as is prescribed for a decree absolute in the case of a suit for foreclosure; the contention that this suit may be regarded as a suit to redeem is obviously untenable. Even if there is no order absolute, the decree nisi directing the sale is in existence; and if the right to redeem be still alive, it cannot be enforced by a separate suit. We are unable to distinguish the present case from the case which was before the Full Bench, the decision in which we are bound to follow; and we must hold that the suit is not maintainable, and that the plaintiff's proper course was to have the matter brought before the Court and disposed of under Section 244 of the Code of Civil Procedure.
5. It has been strongly pressed upon us that we should treat this suit and the decree which has been made in it as an application and an order under Section 244, on the ground that no question of jurisdiction arises; that the case has been tried by the Court which would have disposed of the objections under Section 244; and that the only question is one of costs, as to which the plaintiff is ready to submit to any terms which the Court may impose.
6. We do not see our way to take this course, as we think that the matter has already been disposed of by the Court executing the decree. The plaintiff objected before that Court to the validity of the sale, on the ground that the sale proclamation had not been duly published. The objection was disallowed and the sale was confirmed. As the judgment-debtor was the person whose property had been sold, and the auction-purchaser was the decree-holder, both were parties to the suit, and the question raised was one relating to the execution of the decree which the Court executing the decree must dispose of under Section 244. The petition of objection does not show that it was made specifically under Section 311, and the decision of the Judge dealing with it does not show that it was disposed of under that section. But it matters not if it was, and it may be conceded that the parties treated it as an application under Section 311. It matters not, because the question raised was one of those provided for by Section 244, and one which would be properly disposed of under that section. If the additional ground which has now been raised, namely, that there was irregularity in connection with the bidding at the auction-sale, was not raised in the objections which the plaintiff previously took to the sale, the answer is that it ought to have been raised. It is not even alleged in the present case that the fraud now charged was not known to the plaintiff at the time when he applied to have the sale set aside. Under any circumstances all the irregularities which he now urges ought to have been urged when he objected to the sale. We cannot see, therefore, that there is any hardship or any injustice to the plaintiff in our refusing to deal with the matter in the way suggested by him. He had his opportunity and he failed to take advantage of it. We are, for the reasons which have been given, precluded from so dealing with it.
7. As to the prayer for damages, it is enough to say that this was never pressed in any way, and that the suit has been treated throughout as one in which the sale ought to be set aside on the grounds set out in the plaint.
8. The result is that the preliminary objection that the suit is not maintainable must prevail; the appeal must be decreed with costs; the decree of the Subordinate Judge set aside, and the suit dismissed.