R.C. Mitter, J.
1. The facts of the case are as follows: One Najimuddin and two other persons owed a considerable amount of money to the respondent Haran Sheikh, who brought his suit to recover the same on 27th April 1931 and recovered a decree on 16th January 1932. In execution of his decree he purchased on 20th June 1932 half-share of the property which is the subject-matter of this appeal. Shortly after Najimuddin had incurred his liabilities to Haran Sheik, he executed in favour of the appellant, Dewan Emdad Ali, a mortgage bond on 12th Assin 1336, corresponding to a date in September 1929. The mortgage is an unusual one because it not only included all his immoveable properties but also all his moveables including his cooking vessels and all his earthly possessions. This mortgage followed a hibabil-ewaz which he had executed in favour of his wife in lieu of alleged dower which included also all his immoveable properties and all his moveables. This hibabil-ewaz was undoubtedly a fictitious transaction and has been found to be so by the lower Court, but it has no direct bearing upon the question raised before me. Shortly after the aforesaid mortgage Dewan Emdad Ali brought a suit to enforce it.
2. He got a preliminary decree on 25th February 1932, and a final decree on 20th April 1932. Shortly after obtaining his decree Haran Sheikh applied for execution. In one execution (Money Execution 88 of 1932) he prayed for sale of moveables and in another execution (Money Execution 20 of 1932) he prayed for sale of immoveable properties. Dewan Emdad Ali made two applications to the Executing Court in the two execution cases, one relating to the moveables and another to the immoveables. I am only concerned with his application in respect of the immoveable properties against which Haran Sheik wanted to proceed. It is not an application under Order 21, Rule 59 of the Code. He simply asked his mortgage decree to be notified at the time when the immoveable properties attached by Haran Sheikh would be sold. On that application the Court passed the following order on 2nd May 1932:
One Dewan Emdad Ali puts in a petition that the property mentioned in lot No. 2 of the execution petition, which has been advertised for sale is mortgaged to him and the mortgage suit has been decreed in the local 2nd Munsif's Court. It is ordered that the mortgage to be noted upon (?) at the time of sale, as the sale proclamation has already been issued.
3. At the time of the sale Dewan Emdad Ali's mortgage was notified, and at the sale the decree-holder Haran Sheik purchased the same, as I have stated above, on 20th June 1932. Dewan Emdad Ali put his mortgage decree in execution and purchased the mortgage properties (16 annas of the property now in dispute was one of them) on 25th February 1933. He applied for possession and was resisted by Haran Sheikh and the proceedings out of which this appeal arises were started by Dewan Emdad Ali, he applying to the executing Court to be put in possession of the entire property. Haran Sheikh resists his claim to a half-share therein, the share which he purchased in execution of his decree.
4. The learned Munsif by his order dated 19th June 1933 held that as Haran was not a party to the mortgage suit and was in possession, Dewan Emdad Ali could not go upon the property without calling upon Haran Sheikh to pay up the mortgage dues, and Haran Sheikh could not be turned out of the property without an opportunity being given to him to redeem. He accordingly dismissed the application of Dewan Emdad Ali to be put in possession. There was an appeal against this order by Dewan Emdad Ali. The learned Subordinate Judge heard the said appeal on 26th October 1933. Before him Dewan Emdad Ali contended that Haran's purchase was affected by the doctrine of lis pendens, as he purchased after the institution of the mortgage suit, in fact after the mortgage decree. He urged accordingly that the Munsif was wrong in holding that Haran Sheikh was not bound by his mortgage decree and had still in him the right of redemption. The learned Subordinate Judge held that the doctrine of lis pendens was applicable and remanded the case by his order dated 26th October 1933 for a finding as to whether the mortgage suit of Dewan Emdad Ali was a collusive suit or not. After remand the learned Munsif held that the said suit was not a collusive one, but the learned Subordinate Judge on further appeal has held otherwise.
5. It is surprising to hear now the learned advocate of Dewan Emdad Ali saying that the order of remand made by the learned Subordinate Judge on 20th October 1933 was a wrong one, as the learned Subordinate Judge ought to have held that Section 52, T. P. Act, was not applicable. At that stage the pleader of Dewan Emdad Ali had urged before the learned Subordinate Judge that the principle underlying Section 52 was applicable, convinced the Subordinate Judge that it was applicable and got a remand. I think that this is the case in which the salutary principle that a litigant shall not be allowed to take inconsistent and diametrically opposite positions in the course of the same litigation ought to be applied. It is on this principle that the appeal ought to be dismissed, the findings that the mortgage of Dewan Emdad Ali was a fictitious one and his suit to enforce it a collusive one being good findings based on evidence and binding on me in second appeal. Mr. Lahiri in support of his appeal formulated four points, namely: (i) Section 52, T. P. Act, does not apply to Court sales; (ii) that the execution Court was precluded from entering into the question as to whether the mortgage decree was collusive or not ; (iii) Haran having expressly purchased subject to his client's mortgage cannot challenge the same or the mortgage-decree; (iv) Haran being the representative of the judgment-debtor, Najimuddin, the Court was bound to deliver possession to his clients.
6. Regarding the first point, no doubt Section 52, T. P. Act, does not in terms apply, as Haran Sheikh purchased at a Court sale. But Section 52 embodies the principle of lis pendens which is wide enough to include sales in invitum. That is what the Subordinate Judge in substance held, and held at the instance of Dewan Emdad's pleader, when he said that Section 52, T. P. Act, was applicable. He used the expression that Section 52 T. P. Act, was applicable only as a convenient expression. I have already held that the learned advocate for the appellant cannot be allowed to raise now the questions involved in the first two points. I am further of opinion that the order of the learned Subordinate Judge, dated 26th October 1933, is not now open to challenge. It was an order of remand though an irregular one. The trend of authorities, with the exception of the decision of Page and Graham, JJ., is that such an order is an appealable one: Mahommad Ali v. Karam Ali 1935 Cal 134 at p. 1203. Section 105(2) of the Code accordingly now precludes the appellant from challenging the order of remand and from urging the first two points.
7. The fourth point urged before me falls to the ground with the first and second points. Haran Sheikh would be a representative of Najimuddin if he was affected by the mortgage decree obtained by Dewan Emdad Ali against the latter. This is the principle formulated by the Full Bench in Ishan Chandra v. Benimadhab (1897) 24 Cal 62. But the mortgage decree affects him if the doctrine of lis pendens applies. I have already held that the mortgage decree does not affect, him as it was obtained in a collusive suit. On the principle formulated by Lord Brougham in the well-known case in Bandon v. Beecher (1835) 3 Cl & F 479 the decree obtained by Dewan Emdad Ali in the mortgage suit is not a decree of Court at all in the eye of the law. I accordingly overrule the fourth point also.
8. Regarding the third point: in my judgment a fundamental distinction must be kept in view. A mortgage or charge can be brought to the notice of intending purchasers at Court sales in two ways. Firstly if a claim preferred under 0 21, Rule 59 by the mortgagee succeeds, the fact of the mortgage must be inserted in the sale proclamation. In that case the order passed under Order 21, Rule 62, if not set aside by a suit instituted under the provisions of Order 21, Rule 63, would stand as a final order and would preclude the purchaser at the Court sale from challenging the mortgage. A mortgage or charge however can also be notified in the sale proclamation settled under the provisions of Order 21, Rule 66, or otherwise, as in this case at the time of the sale. In my judgment where a mortgage or charge is notified at the sale but not as a result of an order made by the Court under Order 21, Rule 62, the notification has no greater or less effect in law than that of notice. The purchaser at the Court sale in that case only takes with notice of the mortgage or charge. In the case of a mortgage such notification does not carry the matter further, for a mortgage is binding on the purchaser of the equity of redemption whether he has notice of it or not.
9. But in the case of a charge its notification has a value. In the case before me there were no claim proceedings at the instance of Dewan Emdad Ali. After the proclamation had been published he made an application to the Court and the Court said that notice of his mortgage was to be given at the time of the sale. Haran purchased at the sale and is only affected by the consequences of notice. He has not been put to any further disadvantage and he is not precluded from challenging the mortgage or the mortgage decree, if he is not otherwise precluded on other grounds. The view I am taking is supported by the decisions in Shib Kunwar v. Sheo Prosad (1906) 28 All 418 and Kalidas v. Prasanna 1920 Cal 354. I accordingly overrule all the points urged before me and dismiss the appeal with costs.