1. This appeal is preferred by defendant No. 4. The plaintiff's case is that the predecessors of defendants Nos. 1--3 executed a mortgage in his favour in 1310 B.S.; he then brought a suit on the mortgage against the representatives of the mortgagors, and against the defendant No. 4 as a purchaser, in 1898 and in execution of his decree caused the property to be sold in 1909, when it was brought by Parameswar Ghose, father of defendants Nos. 5, 7, and servant of the plaintiff, as benamida for the plaintiff. It is beyond doubt that there was such a mortgage, that the plaintiff obtained a decree and that the property was bought by Parameswar.
2. The plaintiff went on to say that the father of the defendants Nos. 1--3 then entered into an agreement with the plaintiff, by which the defendants were to pay off the plaintiff's dues by the end of 1322 B.S., meanwhile remaining in possession, and in default the plaintiff was to take khas possession after the end of 1322 B.S. The defendants Nos. 1--3 and defendant No. 4 did, as a matter of fact, remain in possession and according to the plaintiff, it was by virtue of this arrangement. The plaintiff further alleged that only part of the total sum was paid, so he claimed khas possession of the land, with mesne profits, or, in the alternative, a decree for the unpaid balance.
3. The first Court gave the plaintiff a decree for khas possession, and also for mesne profits.
4. The defendant No. 4 preferred an appeal which was unsuccessful, and in consequence he has preferred this second appeal.
5. Two points are raised on his behalf. The first is that the suit is barred by Section 66 of the Civil Procedure Code. Both the lower Courts rejected this argument and I think rightly, for the reason that Parameswar and his successors have not at any stage claimed title under the sale certificate.
6. The second argument is based on the provisions of Order XXI, Rule 72. The plaintiff as decree-holder did not obtain the Court's permission to bid at the sale, instead of seeking permission he caused his servant to buy the mortgaged property benami. The effect of this purchase without permission was considered by both the Courts below, and they took the view that the purchase was voidable but not void, and that defendant No. 4 could no longer avail himself of the remedy provided by Clause (3) of the rule.
7. In the grounds of appeal to this Court: the third and fourth deal with this matter,and we are asked now to hold that the lower Courts should have treated the written statement as an application to set aside the sale. If we were to accept that argument, we should have to remand the case, for there are at least two points which would require investigation, namely, whether the defendant could show that his application was not barred by limitation, and whether, in the circumstances, the case was one in which the Court should exercise its discretionary power of setting aside the sale under Clause (3). I mention these two points Merely to show the force of the respondent's answer that the defendant is setting up an entirely new case. I think that answer is correct and that on that account the appellant's contention must be overruled. The result is that the appeal must be dismissed with costs.
8. I am of the same opinion. I think the defendant being in possession of the property in suit would be entitled to urge by way of defence that the plaintiff's purchase without permission of the Court was not enforceable as against him, even if it were voidable at the option of the defendant only. But it depends greatly on the discretion of the Court, and in exercising such discretion, according to authorities, the Court will take into account prejudice to the defendant, e.g., inadequacy of price, etc. So it is not the absolute right of the defendant to ask the Court to set aside such a sale, which, I take it, is affected with a mere irregularity. In this case the defendant treated the sale as absolutely void and did not ask the Court to exercise its discretion in the matter or place materials before it for the right exercise of such discretion. Even if I were asked to exercise such discretion in this case, I would, in the absence of any material, decide in favour of the plaintiff. I agree that at this stage of the litigation the defendant should not be allowed to make a new case.
9. As to Section 66 Code of Civil Procedure the heirs of Parameswar do not appear in this case and deny plaintiff's benami purchase, that section only applies when the plaintiff attempts to enforce his secret title as against the certificated purchaser. 10. This contention, therefore, fails