Macpherson and Beverley, JJ.
1. This is a suit between two purchasers of a tenure at successive sales for arrears of rent. The tenure was sold on each occasion under the provisions of Section 59 of the Rent Act (VIII of 1869); and the question is which of the two purchasers has the preferential title. The facts are shortly these. The landlord obtained a decree against his tenant for arrears of rent for a period preceding 1288. Subsequently he obtained another decree against the same tenant for the arrears of 1288 and 1289. In 1883, in execution of the first decree, he caused the tenure to be sold, and it was purchased by the defendant No. 1, who is the appellant in this Court. The tenant, the judgment-debtor, then obtained an ex parte decree against the auction-purchaser, by which that sale was set aside; and after it had been so set aside the landlord, under the second decree referred to above, caused the tenure to be again sold in execution, and it was on this occasion purchased by the plaintiff. Subsequent to the last sale the auction-purchaser, the defendant No. 1, on an application to the Court, got the suit in which the ex parte decree had been made against him restored, and after restoration it was dismissed in consequence of the judgment-debtor, who was the plaintiff in that case, withdrawing the claim.
2. It has been found that both the plaintiff and the defendant, the purchasers respectively under the two decrees, were bond fide purchasers, and that there was no fraud or collusion on the part of the defendant appellant in connection with the ex parte decree either as to his allowing it to be made in the first instance, or as to the restoration of the suit in which it was made, or as to the subsequent withdrawal of the claim in that suit.
3. The Lower Appellate Court has decided in favour of the plaintiff on the ground that even if the first sale had been actually subsisting at the time when the second sale took place, as the rent was a charge on the tenure, the purchaser at the first sale, who must be presumed to have had notice of the second sale, ought to have paid into Court the amount that was due under the second decree, and had the sale stayed, and on that ground the Subordinate Judge considered that the plaintiff had an equitable right superior to that of the defendant.
4. We are unable to concur in the view taken by the Subordinate Judge. The effect of the subsequent dismissal of the suit to set aside the sale was the same as if it had been dismissed in the first instance, and as if the first sale bad never been set aside. We must take it that the ex parte decree was made without the knowledge of the auction-purchaser, the defendant No. 1, and that the suit in which it was passed was properly restored, there being no evidence to the contrary, and the Court below having found that the defendant was not guilty of any fraud or collusion in the matter. If, therefore, the first sale must be regarded as subsisting, it seems to us clear that the tenure could not be sold a second time in execution of a decree for rent which became due, not during the time of the purchaser, the defendant No. 1, but at a time antecedent to his purchase. The title vested in the purchaser at the first sale, which was afterwards duly confirmed, and he bought the tenure free of any charges which lay upon it at the time of the sale. We think that the defendant, even assuming that he had notice of the subsequent decree and of the sale in pursuance of it, was not bound to discharge the arrears of rent for which that decree was obtained, and by so doing to protect the property.
5. It has been argued before us that the decision of the Lower Appellate Court ought to be upheld for the reason given by the Subordinate Judge, that the equitable consideration in favour of the plaintiff ought to prevail.
6. It is said that if the defendant had taken possession under his purchase that might have afforded notice to the plaintiff, and might have had the effect of preventing him from purchasing; or, that if after the second sale had taken place, the defendant had intervened, the plaintiff might have got the sale at which he purchased set aside, and at all events recovered the money he had paid. But conceding that the defendant might have done that, we do not think that he was in any way bound to take that course; and it does not at all follow that he had any notice of the second decree or of the sale which took place in pursuance of it. We cannot say that there is any higher equity in favour of the plaintiff, and we think that as the first purchaser of the tenure the defendant is the person in whom the title is vested,
7. Under these circumstances we must allow the appeal, set aside the decree of the lower Courts, and dismiss the suit with costs throughout.