1. The parties to this appeal may be described as Mahomed Ali Meah defendant-appellant and Kiberia Khatun the plaintiff-respondent. The suit was for establishment of plaintiff's taluka right on setting aside the sale held in execution of the decree in contribution Suit No. 31 of 1906, the defendant being the purchaser of the property in suit. The plaintiff is a subsequent purchaser of the same property. In another litigation (Suit No. 485 of 1906,) between the same parties, a solenama or compromise was filed on the 15th December 1906, where in the ownership by purchase of the defendant was admitted by the plaintiff's predecessor, Kala Meah.
2. Both the lower Courts have given the plaintiff a decree declaring his title. In the turn that this case has taken, we are now Concerned with one property only, namely property No. 29.
3. On behalf of the defendant, it has been contended, first, that the lower appellate Court has misinterpreted the solenama, and, secondly, that the sale at which the defendant purchased rot having been set aside, the plaintiff's present suit cannot be proceeded.
4. The admission in the solenama is that the defendant by purchase at an auction sale is the owner of the shikmi taluk.... The, plaintiff or the substituted plaintiff or any other defendant never had any title to or possession in it. This is not conclusive. No admission was made as to the legality of the sale or its final effect. Be that as it may, the solenama was not (as the Munsif finds) acted upon by the parties, and the defendant in his written statement does not even now rely upon the terms of the solenama. The first contention, therefore, fails.
5. The second argument assumes that the sale was not a void sale. It appears that the defendant omitted to deposit the balance of the purchase money in Court; A small sum (one anna) was due from defendant No. 2, the owner of property No. 29 (which was sold for Rs. 2) but the balance was not put in owing to a mistake on the part of the execution mohurir. This was contrary to the express direction of Section 306 of the Code of Civil Procedure, 1882. Apart from the cases, to which we shall refer, it seems obvious that a sale is no sale unless the price has been paid.
6. There appears to be some conflict of authority upon the question whether non-compliance with the provisions of Section 306 of the Civil Procedure Code, is a mere irregularity or vitiates the sale altogether. In the cases of Intizam Ali Khan v. Narain Singh 5 A. 316 and Amir Begam v. The. Bank of Upper India Limited 30 A. 273 : A.W.N. (1908) 107 : 5 A.L.J. 386 the sale was held to be no sale at all, but in Ahmed Buksh v. Lalta 28 A. 238 : A.W.N. (1905) 263 non-compliance with the provisions of Section 306, Civil Procedure Code, was treated as a mere irregularity and Intizam Ali's case 5 A. 316 was declared to be no longer law.
7. In Bhim Singh v. Sarwan Singh 16 C. 33, it was held that non-compliance with the provisions of Section 305 constitutes such an irregularity in conducting the sale as must be inquired into upon an application under Section 311, and that a separate suit on such a ground will not lie.
8. In the present case, the sale at which the defendant purchased took place in 1902, and if non-compliance with the provisions of Section 306 is a mere irregularity which is to be enquired into under Sections 311 and 244, then the defendant acquired a good title when the judgment-debtor did not attack the sale on that ground and the sale was confirmed and the defendant obtained the certificate of sale. Plaintiff's vendor purchased the property in 1904. If non-compliance with the provisions of Section 306 does not vitiate the sale, then the judgment-debtor had no subsisting right which could pass to plaintiff's vendor. He could acquire a right only if the previous sale was void.
9. There is one ground, however, on which the cases of Ahmad Bakhsh v. Lalta 28 A. 238 : A.W.N. (1905) 263 and Bhim Singh v. Sarwan Singh 16 C. 33, can be distinguished. In both the cases, the money was paid though there was delay in payment and it was not paid immediately. The fact that the money was not paid immediately, but was paid afterwards, may amount to only an irregularity in conducting the sale which can be enquired into only upon an application under Sections 311 and 244. But, in the present case, it has been found that the money was never paid at all. A Court can have no power to sell a property to a person who does not pay for the property and a sale so held may be treated as no sale at all under the Code.
10. We may add that the point is a new one in this Court, and it is possible that facts, which are not before us, might give a very different aspect to the defendant's contention if he had raised it at an earlier stage of the litigation.
11. This appeal fails and is dismissed with costs.