Pigot and Beverley, JJ.
1. This appeal arises out of a suit to set aside the sale of a certain jote in execution of a decree, on the ground that the sale had been brought about fraudulently without proper notification, and at a time when the execution of the decree was barred by limitation. On the part of the defendants it was contended, amongst other things, that no separate suit would lie to set aside the sale. The Court of First Instance found that the sale notification had been fraudulently suppressed, and held that a separate suit would lie to set it aside; and the Munsiff further held that inasmuch as execution of the decree was barred at the time of the sale, the sale certificate, under the proviso to Section 316 of the Code of Civil Procedure, could not operate to create a valid transfer of the property sold. He, therefore, gave the plaintiff a decree.
2. The Subordinate Judge, on the other hand, relying on the case of Chowdhry Wahed Ali v. Mussamut Jumaee Suth. P.C. 680 and on the ease of Viraraghava Ayyangar v. Venkatacharyar I.L.R. 5 Mad. 217 held that no separate suit would lie; but he dismissed the appeal on the ground that the decree was not subsisting at the time of the sale, and that, therefore, the sale certificate under Section 316 did not operate to pass the title to the purchaser.
3. It is contended here that this decision is wrong in law; that the words 'subsisting decree' in Section 316 mean a decree unreversed and in full force, and not a decree, the execution of which is not barred by limitation; and further that, when the Subordinate Judge found that a separate suit would not lie, he was wrong to grant the plaintiff a decree.
4. We think that these contentions must prevail.
5. The cases of Mahomed Hossein v. Kokil Singh I.L.R. 7 Cal. 91 and Mungul Pershad Dichit v. Grija Kant Lahiry I.L.R. 8 Cal. 51 are authority for holding that the sale certificate operated as a valid transfer, notwithstanding that the sale actually took place at a time when execution was barred by limitation. The decree under which the sale took place was a good decree, and is in force up to the present time; and the sale which took place under it has been confirmed, and must be held to be a valid sale.
6. Then the question arises whether this separate suit would lie to set aside the sale on the ground of fraud; and on this point we agree with the decision in Viraraghava Ayyangar v. Venkatacharyar I.L.R. 5 Mad. 217; we think the question raised is certainly one relating to the execution of the decree, and that it is between the parties to the suit in which the decree was passed.
7. We think, therefore, that the decree of the lower Appellate Court must be reversed, and the plaintiff's suit be dismissed. But having regard to the circumstances of the case and the conduct of the defendants, we shall follow the course taken in the Madras case cited, and in a somewhat similar case of Paranjpe v. Kanade I.L.R. 6 Bom. 148; and shall direct that each party do bear his own costs throughout.