Prinsep and Beverley, JJ.
1. The appellants, who are the mortgagees of a certain tenure obtained a decree for foreclosure under Section 86 of the Transfer of Property Act. That decree was made on the 11th September 1884, and declared that, on failure to pay the amount due, the mortgagor's right of redemption should be barred on the 11th March 1885. In that month the mortgagor applied to the Court under Section 87 to enlarge the time, and on the 6th April the Court made an order fixing the 30th idem as the date on which the foreclosure would become absolute in the event of non-payment.
2. Meantime, the superior holder of the tenure obtained a decree against the mortgagor for rent, and in execution of that decree the tenure itself was sold on the 6th April 1885, (apparently) free of incumbrances. On the 10th April, the mortgagees applied under Section 311 of the Civil Procedure Code to have the sale set aside, and on the 5th September following the Court disposed of that application, holding on the authority of the case of In the matter of the petition of Bhagabati Churn Bhuttacharjee Chowdhry I.L.R. 8 Cal. 367 : 10 C.L.R. 441, that a mortgagee was not a person whose property had been sold within the meaning of that section. Against that order the mortgagees now appeal.
3. It is pressed upon us on their behalf that a decree for foreclosure having been made on the 11th September 1884, the proprietary right in the tenure passed to the mortgagees on that date, or if not then, at any rate on the 11th March 1885, the date on which the foreclosure was to become absolute-it being contended that the order of the 6th April enlarging the time could not have retrospective effect. On the other hand, it is urged that the proprietary right does not pass to the mortgagee until the foreclosure decree is made absolute, and that no such absolute decree has yet been made in this case.
4. We think that, looking to the terms of s, 86 of the Transfer of Property Act, it may fairly be said that the mortgagees had such an interest in. the property as entitled them to make an application under Section 311 of the Code. A decree under Section 86 virtually has the effect of declaring the mortgagees' right to the property subject to the liability to 'transfer' it to the mortgagor on payment of the sum found due within a certain date. If payment is not made on or before the date fixed, the mortgagor is 'absolutely debarred of all right '--not to the property, but--'to redeem the property.'
5. In such a state of things it would be as difficult to hold that, after a foreclosure decree, the property still belongs solely to the mortgagor, as it would be to hold that it is the property of the mortgagee. We think that either the mortgagor or the mortgagee, under such circumstances, would be entitled to apply to the Court under Section 311 of the Code, if he had reason to believe that the property had been irregularly or collusively sold. Were, we to hold otherwise and to say that the mortgagee had no right to intervene under that section, the result would be that a mortgaged property might be sold behind the back of the mortgagee for a very inadequate sum, and he might thus be deprived of the security for which he had already obtained a conditional decree, or driven to institute fresh legal proceedings to set aside the fraud that had been practised upon him.
6. We accordingly set aside the order of the Munsif of the 5th September last, and direct that the appellant's application be hear. Appellants will have their costs in this appeal.