Macpherson and Beverley, JJ.
1. This is a suit for possession of property the mortgage of which is said to have been foreclosed under Regulation XVII of 1806, or, if the proceedings under that Regulation are found to he defective, as they have been, for foreclosure under the Transfer of Property Act (IV of 1882).
2. On the 6th January 1876, the first defendant, Enayet Ali, the son of Ahmad Ali, mortgaged the property by way of conditional sale to the plaintiff for a sum of Rs. 150. In July or August 1878 he received a further advance of Rs. 30, and executed a fresh deed of the same character to secure that sum, as well as the principal and interest due under the first deed. Title deeds, consisting of a kobala by which Enayet Ali is said to have purchased the land, and some kabuliyats were made over when the first transaction took place, and have been produced by the plaintiff. In 1876, Enayet Ali and his father, Ahmad Ali, borrowed some money from the second defendant, Rabat Baksh, who got a decree against them in 1877, and in December 1878 brought this property to sale in execution of his decree and purchased it himself. The sale was preceded by a claim on the part of Ahmad Ali that the property was wakf and not saleable. This was rejected and a suit which Ahmad Ali afterwards brought to have it declared that the property was wakf was also dismissed.
3. Both the Courts have found that Ahmad Ali was the true owner, and on this ground the Lower Appellate Court has confirmed the decree of the Munsif dismissing the suit without deciding whether the mortgage by Enayet Ali to the plaintiff was a bond fide transaction.
4. It is contended for the appellant (the plaintiff) that the Subordinate Judge has not properly dealt with the case, and that he ought to have found that there was a good mortgage by Enayet Ali, and that the respondent was estopped from denying Enayet Ali's title.
5. We think that as against the respondent there is no estoppel. As pointed out in Dinendronath Sannial v. Ramkumar Ghose I.L.R. 7 Cal. 107 : L.R. 8. I.A. 65, a purchaser at a sale in execution of a decree is in a different position to a purchaser at a private sale, and acquires the title of the judgment-debtor, not through the judgment-debtor, but by operation of law and adversely to him. In Lala Parbhu Lal v. Mylne I.L.R. 14 Cal. 401, it was also held that a purchaser at an execution sale is not the representative of the judgment-debtor, and is not estopped by the conduct which would estop the latter from denying the title of the person through whom title was claimed by the other side.
6. But an estoppel is only a matter of proof. If the plaintiff' could take advantage of it, the effect would be to prevent the defendant from denying the title of Enayet Ali and to establish in that way the plaintiff's case. The plaintiff could, however, establish his case equally well by proving that his mortgage was good as against Ahmad Ali, whose title the defendant had acquired, and in the opinion of both the Courts established. If he had a good mortgage on the property when it was in the hands of Ahmad Ali he had, we conceive apart from any question of estoppel, an equally good mortgage when the property passed to the defendant. But the plaintiff set up no such case as that. He asserted the title of Enayet Ali, the defendant asserted that of Ahmad Ali, and they went to trial on the issue whether the property belonged to the one or the other. That being so, the plaintiff cannot now raise a case which was not raised or put in issue in the lower Courts. Had the suit been against Ahmad Ali, it might have been sufficient for the plaintiff on the issue as to ownership to prove a mortgage by Enayet Ali under circumstances which, if not rebutted, might bind Ahmad Ali. But the defendant as purchaser at an execution sale had no knowledge of the circumstances under which Enayet Ali made the mortgage, and he was entitled, if the plaintiff intended to rely on them, to have the question put in issue and fully enquired into If we allowed the point to be taken, we should have to remand the case for that purpose. The case is not one in which, even if we could, we should be disposed to show any indulgence. The plaintiff' has remained silent for nearly 10 years, and we cannot suppose he was ignorant of the title set up by the defendant or of the litigation by which he secured it; even after the written statement was filed he did not ask for an issue on the question whether his mortgage was good as against Ahmad Ali.
7. In all the cases cited by the appellant, with the exception of Bhugwan Doss v. Upooch Singh 10 W.R. 185 and Poreshnath Mukerji v. Anathnath Deb I.L.R. 9 Cal. 265 the contest was between the true owner of the property, as plaintiff or defendant, and a purchaser from his benamidar. They do not, therefore, apply to the present case. Nor do the two excepted cases apply. In the case of Bhugwan Doss v. Upoch Singh 10 W.R. 185 it was found that although the name of the benamidar was used, the mortgage was in fact affected by the true owner, and in the other case it was held that a mortgagee who would be estopped by the representation of his mortgagor was not placed in any better position by his having purchased the mortgage property at a sale in execution of the decree which he had obtained on his mortgage bond.
8. Some reliance was placed on a dictum of PHEAR, J. in the case of Bhugwan Doss v. Upooch Singh 10 W.R. 185, as showing that the onus was on the defendant to prove that the mortgage was not binding on Ahmad Ali, but the dictum, though applied to that case, referred to one in which the true owner was contesting an alienation by his benamidar. As already observed, the defendant is not a representative of Ahmed Ali.
9. In the view taken we may assume that there was a real mortgage by Enayet Ali, and it is unnecessary to remand the case to have that point determined.
10. It was lastly argued that as the mortgage carried with it a guarantee of title, some relief should be given as against the mortgagor; but no such relief was asked for in the plaint, and it is too late to ask for it now. We dismiss the appeal with costs.