1. The suit in this case was decreed by the Munsif, who found that both the decree and the sale thereunder were fraudulent and illegal.
2. The lower appellate Court found that the fraud alleged had not been made out, but affirmed the judgment of the Court below, so far as it held that the sale was illegal.
3. Against that decision there is an appeal to us; but I think that it is quite clear that the judgment under appeal is correct.
4. In the first place, it is objected that no suit lies at all and that the remedy of the plaintiffs was either to have resisted execution under Section 244 of the Code of Civil Procedure, or, if they had failed in that or had not. taken that course, to apply to set aside the sale, on the ground of irregularity under Section 311. The authorities, however, to which we have been referred clearly establish that Section 244 of the Code of Civil Procedure and the sections which deal with proceedings after-sale have no application to cases arising under Act X of 1859 ; and, therefore, this ground must be held to have failed and the only remedy open to the plaintiffs was by suit. But then it is said that even if that be so, the defendant No. 1 is a bona fide purchaser for value, and whatever may have been the illegality which vitiated the sale, he is not affected. This assumes that he was, in the first place, a bona fide purchaser, a matter which has been found adversely to the appellant in the first Court. But I lay no stress upon that, and will assume, for the purpose of argument, that he is a bona fide purchaser. Even so, in my opinion, the cases, of which that reported in Nawab Zain-ul-Abdin v. Muhammad Asghar Ali Khan 15 I.A. 12 : 10 A. 66, is a type, assume the reversal of the decree in proceedings in which the Court has throughout jurisdiction, if a third party purchaser purchases under a decree given in a matter in which the Court has jurisdiction, no doubt his purchase is not affected by the reversal of that decree in appeal. But that is not the case here. The question, then, is:--Had the Court jurisdiction to sell the property? As regards that, the provisions of Section 108 of Act X of 1859 are perfectly clear. That section provides that an application for the sale of an under-tenure shall not be received, unless execution shall have been first taken out against any movable property which the judgment-debtor may possess in the district in which the suit was instituted and the sale of such property, if any, shall have proved insufficient to satisfy the judgment in my opinion, it is clear that if there be a failure to follow the provisions of this section, the Court selling the property is acting without jurisdiction. And the case, to which the Subordinate Judge refers in Deanutoollah v. Nawab Nazim 10 W.R. 341, appears to be in point. Then, the question resolves itself into this:--Was there or was there not any movable property of the judgment-debtor in the district in which the suit was instituted No doubt, in the written statement, paragraph 6, the defendants allege 'that the plaintiffs have or had no movable property either in the town of Puri or in the District of Puri, as alleged by them in the plaint.' But no issue was raised upon that question ; and it was found, and so far as I can see from the record, without objection, that the plaintiffs had a Katcheri in Puri. That finding does not appear to be impugned in any way in appeal to the Subordinate Judge. If the plaintiffs had a Katcheri at Puri, it is manifest that they must have had movable property in Puri. There is, therefore, in my opinion, no doubt that the sale was without jurisdiction and has been rightly set aside. The purchaser is not without his remedy, because he will be entitled to a refund of the money which he paid under the sale which has been set aside.
5. I would, therefore, dismiss this appeal with costs.
6. I agree.