Wilson and Tottenham, JJ.
1. We are unable to concur in the view taken by the lower Appellate Court in this case.
2. It appears that the plaintiff held two decrees against the same person: one, a mere money decree, and the other, a mortgage decree. In execution of his money decree he caused to be sold the property which was the subject of his mortgage decree; and he now in this suit proposes to proceed on his mortgage decree against that property in the hands of the auction-purchaser.
3. The law, it appears to us, has long been settled on this matter; that one who has caused the property of his judgment-debtor to be sold in execution cannot afterwards set up any claim of his own against that property unless he shows that the purchaser purchased with notice of his claim. Several cases have been referred to before us which seem to show that. The first case is the case of Dullab Sircar v. Krishna Cumar Bakshi 3 B.L.R. 407: 12 W.R. 303; the second, which is to the same effect, is the case of Doolee Chund v. Mussamut Oomda Begum 24 W.R. 263; and there is the more recent case of Tukaram Bia Atmaram v. Ram Chandra Bia Budaram I.L.R. 1 Bom. 314. Those cases were all decided when the former Procedure Code was in force. The matter is even stronger under the Code now in operation, because Section 287 of the present Code expressly requires that every incumbrance to which the property is liable shall be inserted in the sale proclamation. The law, therefore, remains the same now as then, the reason for it being somewhat stronger. It lies, therefore, on the plaintiff, in order to entitle him to recover in this suit, to show that the defendant purchased with notice of his claim; and the Subordinate Judge came to the conclusion that he did purchase with notice. That finding, of course, would be binding upon us if there was any evidence on which it could properly be based. But it is admitted by the pleaders on both sides that there is no evidence bearing on the matter except that which is referred to in full by the Munsif in his judgment at page 5 of the Paper-book under the head 'finding on the first issue.' The Munsif says: 'The onus of proving whether the defendants did or did not purchase the 2 1/2 gundas barari share of mouzah Syedpore Sulha with knowledge of the debt alleged by the plaintiff is on the plaintiff. But he has not filed any documentary evidence to show that the lien was proclaimed at the time of sale of the barari share aforesaid; and it is admitted that there was no oral evidence on the subject at all. If such proclamation be not shown, the mere filing of the petition, dated the 29th November 1877, made by the plaintiff is not enough to prove the said proclamation, because it appears from the above copy that the plaintiff had brought the mortgage alleged by him to the notice of the Court. But it has not at all been shown on behalf of the plaintiff that the fact of the mortgage was proclaimed at the time of the sale in such a manner as to make the defendants, purchasers, aware of it.' The only fact, therefore, which is in evidence and which could have any bearing on this matter in the plaintiff's favour, is that, on the 29th November 1877, at what stage of the proceedings it does not appear, he filed a petition in which he informed the Court of his mortgage. If there were a charge against the plaintiff of having deliberately and fraudulently concealed his mortgage, no doubt this matter would be of considerable importance. But the fact that, for some purpose at some time or other, he informed the Court of the mortgage is not evidence upon which the conclusion could he arrived at that the defendants purchased with notice.
4. For this reason we think that the decree of the Subordinate Judge must be reversed and that of the Munsif affirmed.
5. The appellant will have his costs in this and the lower Appellate Court.