McDonell and Beverley, JJ.
1. If the suit be regarded as one for setting aside the sale, there can be no doubt that it is barred by Article 12 of the Limitation Act. The lower Court was right in finding that there was no fraud on the part of the principal defendants. 'Defendant No. 1, in the letter relied on by the plaintiff, agreed to postpone the sale for one month, on the condition that the property should remain under attachment, and that no fresh sale-proclamation should be necessary. The plaintiff applied to the Court for two months' time, and said nothing in his application as to the sale-proclamation. Defendant No. 2 accordingly refused to consent to the postponement on behalf of his mistress, defendant No. 1. We fail to see any fraud in this conduct. It was not open to defendant No. 2 to consent to the postponement on terms other than those agreed to by defendant No. 1, and if the plaintiff chose to vary those terms, there was no fraud in their rejection. On the ground of fraud, then, we think the sale could not have been set aside even if the suit had been brought in time.
2. But it is contended by the learned Advocate-General that the present suit may be regarded not only as brought to set aside the sale, but also for the purpose of declaring that sale to be a nullity, and in this latter aspect it is not barred by limitation.
3. In the plaint it is prayed that the auction-sale be declared ineffectual and be set aside, and that the plaintiff do recover possession of the property; and in the body of the plaint it is urged that, inasmuch as the property had already been sold on 20th July for Rs. 15,000, there was nothing left to sell on 20th September, and that that was the reason why it fetched the nominal price of Rs. 10.
4. The contention of the learned Advocate-General, therefore, is that, although the first sale had not been confirmed, it was virtually subsisting at the time of the second sale; and that thus there was nothing to sell at the time of the second sale beyond the contingency of the first sale being set aside, and that such a contingency could not be, and was not, sold.
5. In reply to this argument Mr. Bell contends, first, that following the decision of this Court in the case of Sharoda Charan Chackrabati v. Mahomed Isuf Meah I.L.R. 11 Cal. 376 the suit is barred by Section 244 of the Code; and, secondly, that both sales being for a charge on the property in the shape of rent, the second sale was a good and valid sale, notwithstanding the subsistence of the first sale.
6. In answer to this the Advocate-General contends that Section 244 of the Code merely relates to questions arising before execution is taken out, and not to matters treated of in any subsequent sections of the Code. However that may be, we are not prepared in the present case to follow the decision cited by Mr. Bell, and that for this reason. Without expressing any opinion as to the correctness of that decision (to which one of us was a party), we think that the circumstances of the present case may be distinguished. In the aspect in which the suit is now being regarded, it is not a suit to set aside the sale on account of fraud or anything done in connection with the sale itself, but on account of something that took place long after. The first sale was set aside six months after the second sale had been confirmed, and no execution proceedings (so far as we are aware) were then pending. It was impossible, therefore, for the plaintiff to raise this question in the execution proceedings, and his only remedy was by means of a separate suit.
7. On the merits we are of opinion that the first sale, not having been set aside at the time of the second sale, was at that time a good and effectual sale to pass the property as against the judgment-debtor, so that there was nothing left to pass under the second sale. It is true that in the Full Bench case of Sham Chand Kundu v. Brojo Nath Pal Chowdhuri 12 B.L.R. 484 Chief Justice Couch expressed the opinion that pending confirmation of the sale there is nothing more than a contract for sale. The title to the property is no doubt incomplete until the sale is confirmed, but on confirmation it dates back from the time of sale. We think, therefore, that there is more than a contract for sale in the interval between the sale and confirmation; there is in our opinion an inchoate transfer of title, which only requires to be perfected by confirmation. The sale is in fact complete, the consideration has been paid, and if not confirmed, the sale must be set aside. In other words, the whole wording of the Act goes to show, not that pending confirmation there is merely a contract for sale, but that a sale does actually take place, which must be set aside if not made absolute.
8. The case of Sharoda Prosad Mullick v. Luchmiput Singh Doogur 14 Moore's I.A. 529 : 10 B.L.R. 214 is in some respects similar to the present. In that case certain property had been sold in execution, but possession had been withheld by the Court until the auction-purchaser (who was also the decree-holder) furnished security for the estate which she represented. Meanwhile, the same property was sold again to another judgment-creditor. The suit was brought by the first auction-purchaser to assert her title under the first judgment-sale; and in the course of their judgment their Lordships of the Privy Council say: 'The omission to give security could not in any way affect the title which had vested in the plaintiff by the previous sale. * * * * Their Lordships also consider that the Zillah Judge was in error in granting the order for the second sale under the respondent attachment, and confirming the purchase by him when the sale of the same lands had already taken place under Muktakashi Dabee's attachment, and the purchase by her under that sale had been confirmed and had not been set aside. Their Lordships cannot find that this course was in accordance with the Code of Procedure. The title had vested in Muktakashi Dabee by the sale under her attachment, and until it was set aside there was nothing upon which the second sale could operate. This course inevitably created a conflict between the two decree-holders who became purchasers under the judicial sales under their respective attachments, and led to the erroneous order of the 19th of June 1886 which ordered the possession to be given to the respondent. Such a course also is in any case contrary to the interests of debtors as well as creditors, as it is obvious that when property is offered at a second sale, with the cloud cast on the title by the subsisting first sale, it would be likely to go for an inadequate price.' Their Lordships accordingly held that the first sale was valid and gave the plaintiff a decree.
9. It is true that in that case the first sale had been confirmed, but we think this was not a material element in the decision of the case. Their Lordships' decision appears to be based oft the ground that, so long as the prior sale was not set aside, it was a subsisting sale, and there was nothing left on which the subsequent sale could operate. The concluding remarks which furnish one of the reasons for coming to this decision are particularly applicable to the present case. At the first sale the property fetched Rs. 15,000, while at the second sale, no doubt in consequence of the cloud cast on the title by the first sale, it was sold for the nominal sum of Rs. 10.
10. As regards Mr. Bell's argument that the sale was in each case on account of a charge on the property, the facts of this case are very similar to those in Mussumat Latifun v. Sheikh Mea Jan 6 W.R. 112 in which it was held that when a holding has once been sold for its own arrears, it cannot be again put up to sale for the arrears due on account of a previous period. That was exactly what took place in the present case. The second sale was in execution of a decree for arrears of rent for a period prior to that for the arrears of which the tenure had already been sold.
11. We think, therefore, that on the authority of the case last cited, as well as on the other grounds stated by us, the second sale should be held to be null and void.
12. We accordingly reverse the decision of the lower Court, and direct that a decree be entered for the plaintiff declaring the sale of 20th September 1881 to be null and void, and restoring the plaintiff to possession of the property. The plaintiff will also have his costs in both Courts.