Trevelyan and Beverley, JJ.
1. The questions of fact, which were raised in this case in the Court below, have not been argued before us. So it remains for us to determine only questions of law, which depend upon whether effect should be given to the purchase by the plaintiff or to the purchase by the defendant. The facts, so far as they are necessary for the purpose of determining those questions, are as follow:
The plaintiff brought a suit on a mortgage and obtained a decree. In execution of that decree, the property was sold to the respondent before us for a sum of Rs. 725. An application was made by the judgment-debtor to set aside the sale. That application was refused, and the sale was confirmed. Subsequently another application was made by way of review, and eventually the sale was set aside by the first Court. It would follow, therefore, that if matters rested there, the judgment-creditor would have been entitled to proceed to sell the property. But an appeal was preferred to this Court by the purchaser, who is the-defendant in the present suit, and in that appeal he did not make the judgment-creditor, the present plaintiff, a party. Pending such appeal, he made an application to the first Court to stay proceedings on the 4th of April 1892, and the order made was that the auction-purchaser should apply to the Appellate Court, the Subordinate Judge considering that to be the safer course. That amounted to a refusal of the application by the lower Court, and no application was made to this Court to stay the proceedings in execution. At a second sale, which was held on the 19th April 1892, the property, with the permission of the Court, was sold to the plaintiff. Such sale was confirmed on the 21st June 1892, and the present plaintiff put into possession of the property.
2. Subsequent to this, the appeal which had been presented to this Court, and to which, as we have pointed out, the present plaintiff was not a party, came on for hearing, and judgment was delivered in it on the 7th January 1893. By that judgment the appeal was' allowed, and the order of the lower Court was set aside, and this Court pronounced judgment that the sale should be confirmed, saying that it will be for the lower Court to confirm it.
3. As far as we can see the lower Court has by no order confirmed the sale, but it gave a sale certificate and directed the delivery of possession. It might be that the absence of a confirmation of the sale would really have the effect of preventing any effect being given to the title which the defendant claims to have obtained by virtue of the sale; but in this case, we think, we must determine the other questions and not confine ourselves to any narrow point of that description.
4. Now, as we have said, at the time of the sale to the plaintiff there was in existence a decree under which a sale could be effected. There was nothing to prevent such a sale, the previous sale had been set aside, and apart from any question which arises from the appeal, it was undoubtedly the right of the judgment-creditor to proceed in execution of his decree.
5. How far was he affected by the appeal? He was not a party to it, and the fact that an appeal had been preferred, even if he had been a party to it, would not of itself operate to stay execution. It is true that in a case where the decree under which a sale takes place is subsequently set aside, the purchaser, if he be a party to the suit, may have to give up the property. But the reason for that is that the person purchasing is, at the time he purchases, a party to a proceeding which may get rid of the authority for the sale. When he is not a party to such proceeding, the sale is not sot aside. The leading case on the subject is the case of Jan Ali v. Jan Ali Chowdhry 10 W.R. 154. In this case the judgment-creditor is not a party to any such proceeding, and, so far as the principle of Jan Ali Chowdhry's case 10 W.R. 164 is concerned, the effect is practically the same, as if he had not been a party to the suit. So far as the continuation of the suit is concerned, which was the appeal preferred to this Court, he was not a party, but he was a party to the earlier proceedings; and not being a party to the subsequent proceedings, he could not be said to have bid at the sale in any way with the effect of those proceedings hanging over his head. At the time he purchased, he had ceased to be connected with the suit, except so far as execution was concerned.
6. Apart from the consideration of the actual effect of a proceeding of this kind, the case may be viewed as a contest between two persons more or less innocent whose rights to the property have to be determined. In such a case it is necessary to see whether the difficulties could at an earlier stage have been prevented by the action of the one party or of the other. There is no doubt that in this case the whole difficulty would have been prevented by the present defendant applying to this Court to stay execution. Whether he could have done so without making the judgment-creditor a party may be a question. But at any rate, making him a, party, he could have so applied, and, if the execution had been stayed, the present litigation would not have arisen. This circumstance, in our opinion, would itself be sufficient to show that in justice the property should be allotted to the plaintiff, who has throughout neglected nothing, and has only acted in accordance with his right. It is not suggested that he has in any way been acting otherwise than honestly, or has in any way been negligent. That consideration, of course, is a consideration of justice, equity, and good conscience, apart from any technical consideration of the effect of a purchase of this kind. Looking at the case from any point of view, we are of opinion that the plaintiff is entitled to a decree.
7. The learned Subordinate Judge, who has dismissed the suit, has, we think, made a mistake : a mistake upon which the whole of his judgment binges. He says: 'But the auction-purchaser condoned his omission by giving notice of the appeal, as I have noticed above, and the decree-holder should have intervened in the appeal, or should have applied for a review of the High Court.' He could not have applied for a review of the High Court's decision, because he was not a party to the appeal in which that decision was passed; and, although he might Lave intervened, we are not aware that it was his duty to have done so. The appellant might have made him a party, and the appellant had pointed out to him by the Court how he could proceed to stay execution.
8. We think that this appeal must be allowed, the decree of the lower Court set aside, and the suit decreed. The plaintiff is entitled to possession of the property in dispute with costs in both Courts, and he is also entitled to mesne profits from the 26th May 1893 until the delivery to him of possession by the defendant, or until the expiration of three years from the date of the decree (whichever event first occurs), with interest at six per cent, per annum.