Ghose and Stevens, JJ.
1. This appeal arises out of a suit to recover possession of certain shares in a 2-anna 8-pie patti in Mehal Shava, which formally belonged to one Jagdamba Prasad Singh and Ambika Prasad Singh. These parsons and some other persons, namely, Nand Kisore Prasad Singh and Sheo Shankar Prasad Singh owned between themselves the said 2-anna 8-pie share, which is described to be a joint kalam, there having been a separate account opened with the Collector as regards the shares of the other shareholders in the said Mehal Shava.
2. It appears that a mortgage deed was executed by Jagdamba Prasad Singh, who was a member of a joint undivided family, with his brother Ambika Prasad Singh in favour of one Harbans Sahai. This individual obtained a decree against both Jagdamba Prasad Singh and Ambika Prasad Singh, on the 31st August 1889, upon the said mortgage. In execution of this decree the interest of Jagdamba and Ambika in Mehal Shava was sold up and purchased by Har Shankar Prasad Singh, the plaintiff No. 1, and one Moti Sahu, which latter individual transferred the interest which he had purchased to the plaintiff No. 2, Din Dayal Patak. This sale seems to have been confirmed on the 5th March 1892. In the meantime, that is to say, on the 28th March 1891, the ijmali kalam of a 2-anna 8-pie share of Mehal Shava fell into arrears, and the owners failed to pay the Government revenue, the result being that on the 30th September, the said ijmali kalam was sold up, and purchased by a certain person, who subsequently transferred his interest to the present defendants.
3. There appears to have been some opposition to this sale. There was an application to the Collector by certain individuals, one of them being stated to be Har Shankar Prasad Singh, offering, under Section 24 of the Revenue Sale Law, the amount in arrear, but the Collector refused to receive the money from them, and he rejected the application. Subsequently there was an appeal to the Commissioner, on the 28th November 1891, by, as it appears from a certified copy of the petition of appeal produced before us, Har Shankar Prasad Singh and some other individuals, questioning the validity of the sale held by the Collector. This appeal, however, was rejected, and the sale was confirmed on the 11th March 1892.
4. The question that has been raised in this case is as between the plaintiff's, the purchasers at the sale of the 11th December 1891 under the mortgage decree, and the defendants, the purchasers at the sale for arrears of revenue on the 30th September 1891 and which sale was confirmed on the 11th March 1892. The District Judge has held, having regard to most of the facts to which we have just referred (for it appears that all the facts were not before him at the trial) that the principle of Us pendens applies to this case, and that the defendants were bound to satisfy the decree in execution of which the plaintiff made his purchase on the 11th December 189L; but he is at the same time of opinion that, having regard to the fact that 'the plaintiff opposed the confirmation of the sale before the Commissioner, who confirmed the sale on the 11th March 1892,' in equity he is not entitled to recover possession of the property claimed in the suit, but that he may sell the property, subject to the right of redemption in the defendants, the purchasers at the revenue sale.
5. We need hardly state that the sale of the defendants was under the provisions of Sections 13 and 54 of the Revenue Sale Law, so that he acquired the share 2 annas 8 pie thus sold, subject to the incumbrance which Jagdamba Prasad Singh had created in favour of Harbans Sahai, and subject also to the lien declared under the decree of the 31st August 1889. That being so, it follows that the defendants, after the acquisition of the property by them under the Revenue Sale Law, were bound to discharge the mortgage existing in favour of Harbans Sahai before the sale actually took place, or before, at any rate, that sale was confirmed on the 5th March 1892; but they failed to do so, and we think the learned Judge is perfectly right in holding that the principle of Us pendens applies, and that the plaintiff is entitled to relief in this case.
6. But then the learned District Judge has said, as we have already indicated, that by reason of the opposition that was offered by the plaintiff to the confirmation of the revenue sale, he is debarred from obtaining the precise relief that he has asked for, and all that he is rightfully entitled to is an order for sale subject to the equity of redemption in the defendants. Upon the record as it stood at the time when the case was first heard by us there was nothing to show that the plaintiffs, or either of them, opposed the confirmation of the sale before the Commissioner. We, therefore, thought it right and proper to send for from the Commissioner's Office the original petition or petitions of appeal presented to the Commissioner in that matter. It so happens that the original petition of appeal is not to be found in the Commissioner's Office, and the paper that the Commissioner has sent to us does not afford us any help in finding out who the persons were that appealed to the Commissioner. The learned Vakil for the respondents has, however, placed before us attested copies of the petitions presented both to the Collector on the 31st October 1891, and to the Commissioner on the 28th November 1891, and it would appear from the petitions that one Har Shankar Prasad Singh did oppose the confirmation of the sale held by the Collector on the 30th September 1891. But it will be remembered that the plaintiffs did not acquire the interest of Jagdamba and Ambika in the 2 anna 8 pie ijmali Kalam until the 11th December, that is to say, some time after the presentation of the petitions to the Collector and to the Commissioner of the Division. At the time of the presentation of these petitions we may take it, as disclosed in the plaint, that the plaintiff No. 1 Har Shankar Prasad Singh was a shareholder in the estate, Mehal Shava, but his share was confined to a separate 2 anna 8 pie share, and that he had no interest, so far as one can discover, in the 2 anna 8 pie ijmali kalam, which was owned by Jagdamba, Ambika and certain other individuals. It is quite possible that as a shareholder in the mehal itself he was advised to come forward to offer to the Collector the amount for which the revenue sale had taken place, as also to join his other co-sharers in the estate in the appeal to the Commissioner, but there is nothing to show that after he acquired the interest, which he purchased, in the 2 anna 8 pie ijmali kalam, and which was on the 11th December 1891, he, as such purchaser, offered any opposition to the sale which had taken place on the 30th September 1891, and in respect of which an appeal was pending on the 28th November before the Commissioner at the time of his purchase. That being so, we do not see our way to accept the view which has been put forward by the learned District Judge in this case. We do not think that by reason of any conduct on the part of the plaintiff, Har Shankar Prasad Singh, or on the part of the other plaintiff, Din Dayal Patak(for he does not appear to have taken any part in the petitions that were presented to the Collector and the Commissioner) they are in equity barred from obtaining the relief which, according to the view of the learned Judge himself, they are entitled to have, if it were not for the opposition that they are said to have offered to the confirmation of the sale by the Commissioner.
7. It has been contended on behalf of the respondents that it was the duty of the plaintiff's to have, saved the 2 anna 8 pie ijmali Kalam from being sold by payment of the arrears. That might no doubt have been a wise course to pursue, but having regard, to Section 54 of the Revenue Sale Law, it seems to us to be quite clear that the defendants, though they may be taken to have acquired under the sale the 2 anna 8 pie ijmali kalam, acquired it subject to the incumbrance that had already been created in favour of Harbans Sahai, and were bound in law to discharge that incumbrance; and the time they had to do so was the period between the 30th September 1891, the date of their purchase, and the 5th March 1892, the date when the sale was confirmed. No doubt the sale to the defendants did not, according to law, become final, until it was confirmed under the orders of the Commissioner on the 11th March 1892, but there was nothing in law to prevent them from paying up the decree in favour of Harbans Sahai, or depositing the money under protest. In that way they might have saved their equity of redemption, but they allowed the sale to take place, the result being that the plaintiffs acquired the property on the 5th March 1892.
8. In this view of the matter we think that the decree of the learned District Judge cannot be supported. We accordingly set aside the decree of the Lower Appellate Court and restore that of the first Court, with all costs.