Banerjee and Rampini, JJ.
1. This appeal arises out of certain execution proceedings. The appellants, who are the holders of a mortgage decree, applied for the execution of their decree by the sale of the mortgaged property. The judgment-debtors opposed the application on two grounds, namely : first, that execution was barred by limitation; and, second, that the mortgaged property having once been sold in execution of the decree could not be sold again. The first Court overruled these objections and ordered that execution should proceed. On appeal by the judgment-debtors, the Lower Appellate Court has reversed the first Court's decision, and disallowed execution.
2. In second appeal it is contended for the decree-holders, first, that the Lower Appellate Court is wrong in holding that execution is barred by limitation; and secondly, that the Lower Appellate Court is wrong in holding that the previous sale was a bar to any further sale.
3. The facts of the case, which are necessary to be referred to for the purposes of this appeal, are shortly these : The decree now sought to be enforced was passed in 1890. The first application for sale was made on the 28th of August 1891, and the mortgaged property was sold in execution and purchased for Rs. 151 (the decree being for a very much larger amount) by the judgment-debtors benami in the name of a third person (as has now been conclusively found). Thereupon on the 12th of November 1891 (that is, three days after the sale) the decree-holders applied to the Court by which the sale had been held for cancelment of the sale on the ground of the judgment-debtors having purchased the property benami and for resale. That Court having refused the application on the 12th of April 1892, the decree-holders appealed to the District Judge, and the Judge on the 22nd of July 1892 cancelled the sale and ordered resale, holding that the judgment-debtors having purchased the property benami there was no real sale of the property. The Judge's order, however, was reversed by this Court in second appeal on the 4th of August 1893, the learned Judges who heard the second appeal being of opinion that the mere fact of the judgment-debtor having purchased the property did not make the sale an invalid sale, and that the decree-holders were competent to sell the property and any other property of the judgment-debtors in satisfaction of the mortgage debt. The present application is dated the 3rd of December 1894, and by it the decree-holders seek to sell the mortgaged property in order to realize the unsatisfied portion of the decree. It should be here stated that the suit upon the mortgage having been brought more than six years after the debt became due satisfaction can be obtained only by the sale of the mortgaged property, the personal remedy against the debtor being barred by limitation. See Ramdin v. Kalka Persad I.L.R. 7 All. 502, Miller v. Runganath Moulick I.L.R. 12 Cal. 389.
4. These being the facts of the case, the first question for consideration is whether the present application is barred by limitation. We are of opinion that it is not. Though the present application is made more than three years after the date of the decree and of the last application for execution, it maybe regarded as a continuation of the application of the 12th of November 1891, which was clearly in time, and in which in addition to the prayer for cancelment of the execution sale, the decree-holders also prayed for a resale of the mortgaged property; and as the decree-holders were precluded from asking the Court to grant this last-mentioned prayer, until the bar placed in their way by the adverse decision of the first Court, dated the 12th of April 1892 to the effect that the purchase at the former execution sale was not made by the judgment-debtors benami, was reversed by the decision of the Appellate Court on the 22nd of July 1892, and finally by the decision of this Court in second appeal on the 4th of August 1893, they were quite in time (under Article 178, Schedule II, Act XV of 1877) in making their present application for resale on the 3rd of December 1894. The view we take is amply supported by the decisions of this Court and of the High Courts of Allahabad and Bombay, and we need only refer to the cases of Pyaroo Tuhobildarinee v. Nazir Hossein 23 W.R. 183, Chandra Prodhan v. Gopi Mohun Saha I.L.R. 14 Cal. 385, Paras Ram v. Gardner I.L.R. 1 All. 355, Kalyanbhai Dipchand v. Ghanasham Lal Jadunath ji I.L.R. 6 Bom. 29, Chintamon Damodar Agashe v. Balshastri I.L.R. 16 Bom. 294.
5. Execution not being in our opinion barred by limitation, the next question for consideration is whether the previous sale under the mortgage decree is a bar to a fresh sale under the same. We are of opinion that this question also should be answered in the negative. It is true that it has been conclusively held by this Court in the former proceedings that the previous execution sale was a valid sale, but that cannot prevent a resale of the property when it has been found equally conclusively in the same proceedings that the purchasers at the sale were the judgment-debtors themselves. The mortgage-decree remains unsatisfied except as to a small part, and the mortgaged property still remains the property of the judgment-debtors, the mortgagors; and is it open to them to set up their purchase at the execution sale for a price which is far below the amount of the mortgage debt as a bar to the mortgagees' right to realize their dues by the sale of the property? We think clearly not. Our decision rests upon the broad principle of equity that the mortgagor, while still retaining the mortgaged property for himself, cannot by any act of his other than actual payment of the mortgage debt get that property freed from the charge which he himself has created. We need not here go so far as this Court was asked to go in Ram Awtar Singh v. Tulsi Ram 5 C.L.R. 227. The principle of equity that we apply is no novel principle. It is closely allied to the principle which the Court of Chancery enforced in Otter v. Lord Vaux 2K. and J. 650 : 6 De G. M. and G. 638, where it held that a mortgagor, by his purchase from the first mortgagee under a power of sale, could not defeat the title of the second mortgagee, and which the Judicial Committee affirmed in the case of Lutf Ali Khan v. Futteh Bahadur I.L.R. 17 Cal. 32. Their Lordships said: 'The sale to the appellant was in the execution of a decree which was made to give effect to a compromise between the mortgagor and the mortgagee. He undoubtedly acquired by his purchase a right to possession against the mortgagor, and the mortgagor ought not to be allowed to defeat that by having purchased the interest which was sold in execution of the decree upon the second mortgage.'
6. It was urged for the respondents that granting that the mortgagee has the right to sell the property, he cannot enforce that right in execution of the decree he has obtained, but he must proceed by a separate suit. To this objection the answer is simple. Section 244 of the Code of Civil Procedure enacts that all questions arising between the parties to a suit relating to the execution, discharge or satisfaction of the decree should be determined by the Court executing the decree and not by a separate suit, and there can be no doubt that the question raised before us is one of that description.
7. We are therefore of opinion that the application of the decree-holders for the resale of the mortgaged properties is not barred in any way, and that this appeal should be decreed, the order of the Lower Appellate Court reversed, and that of the first Court overruling the objection of the judgment-debtors restored with costs. Execution will proceed, as prayed by the sale of the mortgaged property.