Asutosh Mookerjee, J.
1. The subject-matter of this lit gation is a tract of laud which was taken by the ancestors of the plaintiffs, on the 18th May 1879, in Mourasi Mokarari tenancy right from a family of Ghoses. The plaintiffs, like their predecessors, were in possession by payment of rent to their landlords till they were dispossessed on the 13th February 1917, by the first defendant who obtained delivery through Court on the allegation that he had purchased the land on the 21st November 1916, in execution of a decree; for arrears of rent. The plaintiffs made an ineffectual attempt at resistance, and their objection was rejected by the Court on the nth June 1917. On enquiry they ascertained what had happened to their tenancy, and the facts they discovered may be briefly narrated at this stage.
2. In 1904, the Ghoses sued the plaintiffs for arrears of rent, and obtained an ex parte decree for Rs. 2-2-0. No further details are available, as the records of the rent suit have been destroyed in accordance with statutory rules. No application for execution of this decree appears to have been made till the 2nd August 1907 when proceedings were instituted for realisation of the decretal amount and Rs. 3-3-0 as costs. A, sale was held on the 21st November 1907 when one Behar Lal Das, since deceased, was the sole bidder present and purchased the tetrancy for a sum of Rs. 22. The sale was confirmed on the 30th January 1908. The purchaser, however, never obtained delivery of possession through Court and never paid rent to the landlords. The result was that on the 14th April 1913, the Ghoses instituted a suit against Soudamini Dasi, widow of Behari Lal Das, for recovery of Rs. 15-7-6 as arrears of rent for four years from 14th April 1909 to 13th April 1913. The suit was decreed ex parte on the 24th June 1913. A sale was held on the 21st November 1910, when Bireswar Ghose, now appellant before us, became purchaser of the tenancy for a sum of Rs. 50. The sale was confirmed in due course; and when the purchaser went to take possession, he came into', conflict with the plaintiffs, as already stated. The plaintiffs thereupon instituted this suit, on the 31st May 1918, for recovery of possession of the disputed land upon car cellation of the ex parte decrees and consequent execution sales, on the allegation that they had been brought about by fraud on the part of the Ghoses. According to the plaintiffs the fraud cons sted in the suppression of all notices in the suits and in the execution proceedings and the submission of false returns of service to the Court. The plaintiffs further suggested that the ostensible purchaser was, on each occasion, a creature of the Ghoses who had managed to purchase a valuable property for an insignificant price. The Ghoses, the purchaser at the second sale, as also the widow of the purchaser at the first sale, were all joined as defendants. The claim was, however, contested, on paper at any rate, by the second purchaser alone. He repudiated the charge of fraud and maintained that he had made the purchase on his own account. The Court of first instance held that the charge of fraud was not established by the evidence and dismissed the suit. Upon appeal, the Subordinate Judge has reversed that decision. He has held that the suits aid execution proceedings were fraudulent, that all notices were suppressed both in the suits and in the execution proceedings, and that false returns of service were submitted to the Court, by the officers concerted. In this view, the Subordinate Judge has held that the decrees and soles must be vacated and the property restored to the plaintiffs. On the present appeal, the second purchaser has urged that he is a bona fide, purchaser for value without notice and is entitled to retain the property, even though the suits and execution proceedings be held to have been fraudulent, la support of this proposition, reliance his teen placed upon the decision in Chitambar v. Krishnappa 26 B. 543 : 4 Bom. L.R. 249. The plaintiffs respondents have controverted this position, and have further contended that the defence of purchase for value without notice, even if available, should have been specifically alleged and proved. In support of this proposition, reference has been made to Attorney-General v. Biphosphated Guano Co. (1879) 11 Ch.D. 327 : 49 L.J. Ch. 68 : 40 L.T. 201 : 27 W.R. 621 and In re Nisbet & Pott's Contract (1906) 1 Ch. 386 at P. 395 : 75 L.J. Ch. 238 : 54 W.R. 286 : 22 T.L.R. 233 : 94 L.T. 297. We have not thought it right to overrule the plea of defence of purchase for value without notice on the ground that the question was not specifically raised in the pleadings or in the issues; the defect may be remedied, if necessary, by a remand on terms. As to costs, specially as the defence has sometimes been entertained, when it has been pleaded in substance arid is a just inference from the facts alleged; Taylor v. Blakelook (1886) 32 Ch.D. 560 at P. 565 : 56 L.J.Ch. 390 : 55 L.T. 8. We shall consequently examine, whether the defendant has a substantial answer to the claim.
3. It may be stated et the outset that in a long line of cases in tins Court the view has Been maintained that an execution sale which has been brought about by fraud of the decree-holder, is liable to be set aside on that ground, by application to the Execution Court, even though it is not established that the auction-purchaser 'has participated in or: has been cognizant of the fraud. Thus, in Khirode Sundari Debi v. Jnanendra Nath Pal 6 C.W.N. 283, it was ruled that a judgment-debtor is entitled, by an application under Section 244 of the Civil Procedure Code of 1882, to have an execution sale of his-properties set aside, if he alleges and proves fraud on the part of the decree-holder, though no fraud is alleged or proved against the auction-purchaser who is a stranger to the suit. Maclean, C.J, treated this proposition as well-settled by the decisions in Nemai Chand Kanji v. Deno Nath Kanji 2 C.W.N. 691; Rojoni Kant Bagehi v. Hossain-ud-din Ahmed 4 C.W.N. 538 and Him Lal Ghose v. Chundra Kant Ghose 26 C. 539 : 3 C.W.N. 403 : 13 Ind. Dec. (N.S.) 946. Banerjee, J., referred in addition to the decision in Bhubon Mohan Pal v. Nunda Lal Dey 26 C. 324 : 3 C.W.N. 399 : 13 Ind. Dec. (N.S.) 811 and assigned the following reason in support of his conclusion; 'The sale: in execution of a decree is brought about by the instrumentality of the Court; the Court being set in motion by the decree-holder. If the decree-holder is guilty of fraud in the conduct of the sale the process of the Court must be held to have been abused by him in bringing about the sale; and it cannot be said that a sale obtained through the abuse of, the process of the Court by the fraud of the decree-holder who set the Court in motion, should be upheld, merely because the auction-purchaser is innocent of the fraud. The auction-purchaser, of course, is entitled to have the purchase-money paid by him refunded by the decree-holder; but he cannot insist upon a sale brought about by fraud practised upon the Court and by the decree-holder being maintained.' Banerjee, J., adhered to this view in Hungsha Majillya v. Tincowrt Das 8 C.W.N. 230, when he was pressed with the decision in Mokesh Chandra Bagchi v. Dwarka Nath 24 W.R. 260, in which it had been held that, however fraudulent the conduct of a plaintiff in a suit may be, if the purchaser is not implicated in the fraud the validity of the sale cannot be affected by the badness of the decree in execution of which the sale took place. Banerjee, J., observed that ever ii this were conceded, a different rule should hold good where cot only the decree but the execution proceedings are fraudulent. 'If the sale is brought about fraudulently, that must be a Sale brought about by abusing the process of the Court; and such a sale would be invalid, quite irrespective of the validity or invalidity of the decree, and the auction-purchaser cannot be entitled to maintain his purchase, notwithstanding that the proceedings by which he became a purchaser were fraudulent.' This view was followed in Ambika Prasad Singh v. Whilwell 6 C.L.J. 111, which dissents from Abbubaker Sahib v. Mohidin Sahib 20 M. 10 : 7 Ind. Dec. (N.S.) 7, and refers to Adhar Mani Dassi v. Monmotha Nath Bose 6 C.W.N. 279, On the other hand, where the scope of the fraud is limited to the suit and does not pervade the execution proceedings as well, it has been held that an innocent purchaser, not a party to the fraud nor apprised thereof before he paid his money, would be protected: Bishun Chand v. Bijoy Singh 11 Ind. Cas. 399 : 13 C.L.J. 588 : 15 C.W.N. 648 : 8 A.L.J. 587 : 13 Bom. L.R. 440 : (1911) 2 M.W.N. 418 : 21 M.L.J. 952 : 10 M.L.T. 335 (P.C.); Radha Madhan Paikara v. Kaltataru Roy 14 Ind. Cas. 111 : 17 C.L.J. 209.
4. There is thus a long and uniform series of decisions in this Court in support of the e proposition that, where an execution sale has been brought about by fraud practiced on the Court by the decree-holder, the sale twill be set aside on application to the Execution Court, even though the auction-purchaser may rot have participated in; or may not have been cognisant of the fraud. This principle has received legislative approval in Order XXI, Rule 90 of the Civil Procedure Code, 1908, where provision is made for cancellation of an execution sale ton the ground of a material irregularity or fraud in publishing it, provided the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. Under Section 311 of the Code of 1882, which was re placed by Order XXI, Rule 90 of the Code of 1908 an execution sale could be set aside on the ground of material if regularity in publishing or conducting it, provided the applicant had sustained substantial injury there from. On this rule, the judicial decisions engrafted the principle that an execution sale might be set aside on the ground of fraud under Section 244. The consequence was a threefold distinction between the two classes of cases: (i) when fraud was established, no question of substantial injury arose; (ii) the period of limitation governing an application for cancellation of a sale on the ground of fraud was three years, where as the period governing an application based on the ground of irregularity was 30 days, and (iii) the decision on an application for cancellation of a sale on the ground of fraud operated as a decree, subject to a first appeal and a second appeal, while the adjudication on an application founded on allegation of irregularity, operated as an order subject to a first appeal only. These differences have been obliterated by the Code of 1908 and the two classes of cases have been assimilated. The Code, be it noticed, does not exclude specifically the application of Rule 90 in cases where the purchaser is a, bona fide purchaser for value without notice of the irregularity or the fraud; and our attention has not been drawn to any judicia pronouncement, except the dicta in Paresh Nath v. Harl Charan 10 Ind. Cas. 361 : 38 C. 622 : 15 C.W.N. 75 : 14 C.L.J. 300, to show that the Court should, in the application of the provisions of Order XXI, Rule 90, have regard to the fact that the purchaser is a stranger to the proceedings. On the other hand, the statement contained in the referring order made by Pandit, J., on the 16th May 1867, in the case of Abdool Hye v. Nawab Raj 9 W.R. 196 : B.L.R. Sup. Vol. 911, shows that a sale may be set aside on the ground of irregularity, however innocent the purchaser. It must further be borne in. mind that, by virtue of Section 18 of the Indian limitation Act which extends the period of limitation in cases of fraud, a sale may have to be set aside under Order XXI, Rule 90, even though it may have been meanwhile confirmed under Order XX, Rule 92. The position then is that, subject to the conditions prescribed by Order XXI, Rule 90, an execution sale may be set aside on the ground of fraud precisely in the same manner 'as on the ground of irregularity, and that the exercise of this power by the Court is not excluded in cases where the purchaser falls within the category of bona fide purchaser for value without notice. As Pandit, J., pointed out in the case mentioned, 'a purchaser in execution is always an adventurer and knows that his purchase is attended with risk,' the risk, amongst others, that his purchase may be null fied on the ground of mater al irregularity or fraud in publishing or conducting the sale.
5. We have next to consider the class of cases where the validity of an execution sale is impeached on the ground that the decree which is the foundation of the sale had been obtained by fraud. The question of the position of a bona fide purchaser for value without notice, in this connection, was reserved by Sir Barnes Peacock, C.J., in delivering the judgment of the Full Bench in Nilmani Burmck v. Pudio Lochan Chuckerbutty B.L.R. Sup. Vol. 379 : 5 W.R. Ace. X, Rn 20, In that case, as also in Ram Soondur Poramanik v. Prosunno Coomar Bose (20)(sic), it was ruled that a suit lies in a Civil Court to et aside a sale in execution of a decree fraudulently obtained in a Revenue Court under the Bengal Rent Recovery Act, 1859. This conclusion was rested on the ground that it is a cause of suit in the Civil Courts, which have jurisdiction to administer the rules of equity, justice and good conscience, to set aside decrees obtained by fraud and to restrain the parties to the fraud from reaping the fruit of such decrees. Peacock, C.J., then added the following observation! 'In this case, the Revenue Court, upon review, set aside the judgment under which the tenure was sold, end passed a fresh judgment for a different amount. When that judgment was set aside, there was no judgment to support the sale which had taken place under it. It is unnecessary to say what would have been the effect of setting aside the decree under which the sale took place, if the purchaser at the sale had been a bonafide purchaser. It is sufficient to state that a decree set a side for fraud would not support a sale to s purchaser in collusion with the parties to the fraud and acting as benami for one of them. This is the charge in the present case, and if the fraud alleged be made out, the plaintiff is entitled to relief.' The question arose directly for decision in the case of Abdool Hye v. Nawab Raj B.L.R. Sup. Vol. 379 : 5 W.R. Ace. X, Rn 20. There, a decree was obtained against the appellant in the Court of Behar and was transferred for execution to the Court of Surajgarh. The judgment-debt was paid into Court at Behar on the 14th January 1851. An intimation was sent to the Surajgarh Court that the decree had been satisfied and execution was no longer necessary. This, however, reached the Court after the sale had been held on the 3rd February 1851, and the property had passed into the hands of a stranger. The judgment-debtor thereupon sued for cancellation of the sale. The Trial Court dismissed the suit on the ground that the plaintiff had no right to bring the action, and this was confirmed by the lower Appellate court. Pandit, (suc) elaborately discussed the law on the Subject, and, with the approval of Bayley, J., referred the following question to a Bull Bench for decision:
Whether with reference to objections urged by the purchaser, the sale should or should not be set aside, or, in other words, whether and how far in a regular suit, claims of a purchaser in execution of decrees are to be respected and rotected on grounds of his innocence and ignorance.
6. Peacock, C.J., with the concurrence of Bayley, Seton-Kerr, Phearand Macpher-son, J J., delivered the judgment of the Bull Bench in the following terms:
The substantial question of law which has been referred for the decision of the Full Bench is; whether, having reference to the cases mentioned in the order of reference. In re Shumboonath Roy (1847) Carrau 117 : 2 Sum. Rep. 94, In re Cutmaernath (1841) Carrau 39; In re Nadir (1842)Carrau 71; In n Gunga Pershad (1842)Carrau 71, Bootan v. Bhugwan (sic)(25), a bona fide purchaser for valuable consideration and without notice, at a sale in execution of a decree is protected from having the sale set as sale, under the present or former law. We are of opinion that the decisions do not go to the extent of saying that, under no circumstances, can a sale be set aside as against a purchaser. In each case it will be for the Court which tries the case, to determine whether it will be in accordance with the principles of justice, equity and good conscience, that the sale ought to be set aside or not. Each ca se must be determined by the Court upon its own merits.
7. It must be noted at this stage that no reference is made, either in the Order of Reference or in the judgment of the Bull Bench, to a dictum of the Judicial Committee in Lalla Bunseedhur v. Koonwur Bin-foseree Dutt Singh (sic)(26), decided on the 26th February 1866, that is, after the judgment of the Full Bench in Nilmani Burnick v. Puddo Lochan Chuakerbutty B.L.R. Sup. Vol. 379 : 5 W.R. Ace. X, Rn 20 which was decided on the 5th February 1866 and before the Order of Reference Abdool Hye v. Nawab Raj 9 W.R. 196 : B.L.R. Sup. Vol. 911, which was made on the 16th May 1867. The appeal before the Judicial Committee arose out of a suit instituted by Bindesree Dutt Singh to obtain cancellation of an agreement made by his step-mother and late guardian whereby debts and obligations were incurred by her, which led to a decree' against his estate during his minority and a consequent judicial sale. The defendant judgment-creditor became the purchaser t that sale and his title was impeached on the ground that the agreement, the decree, and the sale were fraudulent and collusive. The history of the transactions is set out at length in the judgment of the Sudder Court pronounced in an appeal from the decision of the Principal Sudder Amin; Lalla Bunseedhur v. Koonwur Bindeseree Dutt Singh (1863) 2 N.W.P. Sud. Dec. 73. It was urged before the Sudder Court that the sale could not be reversed upon a late precedent of that Court; Ali Hossein v. Badul Khan(1863) N.W.P.S.D.A. decided on 19th may, Roberts and Batten, J J. overruled this contention in the following terms.
8. But there is this peculiarity in this case, that the vendee is not an innocent purchaser, but one who has caused the sale of the property by his own dishonest and artful agency. Such sales, we have no doubt, ought to be cancelled, as the law will not allow a party to take advantage of his own wrong. This view was assailed before the Judicial Committee, and it was argued that there was no evidence to show that there was fraud an collusion between the guardian of the minor and the appellant or that the sale was prejudicial to the estate of the infant. Lord Chelmsford observed: 'You get a cognovit for Rs. 54,000 on an advance of Rs. 26,986 borrowed according to your argument to save the estate, but under that cognovit, or confession of judgment, you force a sale yourself and actually buy in the minor's estate: Can that stand? Lulla Bun seedhur v. Koonwur Bindeseree Dutt Singh (sic)(26) Counsel for the appellant answered; 'The sale was by public auction under a decree of Court, whereby the payment of the Rs. 26,986, advanced to save the estate, was decreed: If the transaction as to the Ikraranamah foils, yet the appellant was a purchaser at an execution sale and a decree-holder. His rights were similar to a stranger purchasing, Ali Hossein v Babul Khan (1863) N.W.P.S.D.A. decided on 19th may.' Counsel for the respondent urged that the whole transaction was shown by the evidence to be tainted with fraud; he was stopped by lord Chelmsford with the observation, 'We are satisfied en that point.' The question, which the Judicial Committee was, in these circum stances, called upon to consider was whether the appellant could set up his purchase at the execution sale as a bar, though the entire transaction which he himself had brought about, was tainted with fraud. Sir James Civil held that the Courts below were warranted in their conclusion that the transaction was not only prejudicial to the estate, but had also the character of a fraudulent contrivance, and then added the following observation with reference to the question, whether the sale had interposed an effectual bar to the application of the more appropriate equity of restoration of the property to the minor than the remedy by appropriation of the surplus sale-proceeds: 'Their Lordships concur with the learned Judges of the Sudder Court in dissenting from the authority of the case which is stated to have been decided in 1847 (1863?) by two out of three of the then Judges of the Sudder Court of the North-Western Provinces. The proposition that no difference is to be made between an innocent purchaser and One tainted by the fraud which has brought about the execution sale seems to them to be wholly untenable. The question is; in the former case, which of two innocent parties 'hall suffer; in the latter, whether he who has wronged the other party shall be allowed; to enjoy the fruits of his wrong doing. A Court exercising equitable jurisdiction may withhold its hand in the one case, and yet set aside the sale with or without terms in the other. In the present case, the judgment by cognovit, the execution and the sale are all tainted with the fraud which entered into the original transaction, the execution of the ikrar. All arc parts of the contrivance by which the respondent has been deprived of his property and the appellant has acquired it. Their lordships, therefore, are of opinion that both tie Courts below were right in decreeing that possession of the property should be restored to the respondent.
9. It is manifest that the Judicial Committee were not called upon to examine, whether a bond fide purchaser for value without notice was entitled to retain the property which has vested in him by the sale, even though the decree and sale were tainted with fraud. The question was, whether, on the assumption that an innocent purchaser was entitled to special protection, a fraudulent purchaser could be included in the same category. The answer was in the negative, and the reason assigned was that he who has wronged the other party cannot be allowed to enjoy the fruit of his wrong doing. It may be conceded that even a dictum of the Judicial Committee is entitled to great respect, but we cannot altogether overlook the circumstances of the litigation where the pronouncement was made.
10. Let us return to the decision of the full Bench in Abdool Hye v. Nawab Raj 9 W.R. 196 : B.L.R. Sup. Vol. 911. The principle enunciated there was applied in Jungee Lall v. Sham Lal Misser 20 W.R. 120. In that case, an ex parte decree was obtained against the infant members of a Mitkshara family under such circumstances that their interest in the estate could not be bound thereby. Before the decree was executed, the mother of the infants notified that she denied their liability and questioned the validity of the parte decree on the ground that they were not properly represented in that suit. Notwithstanding such notice the defendants purchased the property at the execution sale. It was ruled by Mark by and Birch, JJ;, that the purchasers were not protect to by a decree which, by reasonable diligence, they might have discovered to be invalid. In such circumstances the purchasers could not invoke the principle of the decision in Jan Ali v. Jan Ali I.B.L.R.A.C.J. 56 : W.R. 154 : 3 Mad. Jur. 474 : 1 Ind. Dec. (N.S.) 158, where no question of fraud was raised, and it was ruled that a stranger who purchases in execution of a decree is not affected by the subsequent cancellation or reversal of the decree The question came up for consideration again in Mohesh Chandra Bagchi v. Dwark Nath 24 W.R. 260 there the suit was institute to set aside an ex parte rent-decree obtained under the Bengal Rent Recover; Act, 1859, and an execution sale consequent thereon. The Trial Court found the entire proceedings the suit, the decree and the sale were fraudulent, and can celled the decree and sale, commenting adversely on the conduct on the purchaser, who was a Pleader and a Stranger to the suit. Upon appeal, the District Judge dismissed the suit as barred by limitation. On second appeal to this Court, Jackson and McDonnell., held that the suit was not barred be imitation and remanded the case for with special reference to the question, whether the defendant or any of them had been proved to have been implicated in the fraud, as found by the primary Court. It was observed that upon the authority of previously decree cases, It was clear that, however fraud the conduct of the plaintiff in the rent suit might have been, if the purchaser was no implicated in the fraud, the validity of the sale would not be affected by the badness of the decree under which the sale tool place. It may be stated that the previous decisions on the subject were neither mentioned nor discussed in the Judgment Amongst later decisions, reference has already been made above to the judgment of the Judicial Committee in Bishun Chand v. Bijoy Singh 11 Ind. Cas. 399 : 13 C.L.J. 588 : 15 C.W.N. 648 : A.L.J. 587 : 13 Bom. L.R. 440 : (1911) 2 M.W.N. 418 : 21 M.L.J. 52 : 10 M.L.T. 335 (P.C.) . There, a suit was brought to set aside an auction sale on the ground that it was bt ought about by the fraud of the decree-holder and the judgment-debtor and that the auction-purchase was a benamidari the judgment-debtor. The Trial Court found these allegations established and set aside the sale. On appeal to this Court, that decree was affirmed, as a reasonably clear case of fraud and dishonesty to which the purchaser was a party, had been made Mad out. The Judicial Committee reversed the concurrent finding that the sale was fraudulent and collusive. Lord Robson held that the original debt and the decree thereon were genuine, that the auction-purchaser had made the purchase with his own money, and that tie allegation of fraud and conspiracy made against the auction-purchaser had not been brought home to him. In such circumstances, the conclusion was inevitable that these could not be successfully impeached. We have finally to consider the decision in Chitambar v. Krishnappa 26 B. 543 : 4 Bom. L.R. 249 where Jenkins, C.J., and Crowe, J., doubted the correctness of the Full Bench decision in Abdool Hye v. Nawab Raj 9 W.R. 196 : B.L.R. Sup. Vol. 911 on the authority of the decisions in Gore v. Stacpoole (1813) 1 Dow. 18 : 14 R.R. 1 : 3 E.R. 607; Bowen v. Evans (1843) 1 J. and L. 178 : 6 Ir. Eq. R. 669 : 68 R.R. 242; Colelough v. Bolger (1816) 4 Dow. 54 : 16 R.R. 24 : 3 E.R. 1087; Lalla B nseedhur v. Koonuav Blndeseree Dutt Singh (SIC)(26; and J an Ali v. Jan Ali I.B.L.R.A.C.J. 56 : W.R. 154 : 3 Mad. Jur. 474 : 1 Ind. Dec. (N.S.) 158. We have already referred to the questions in Lallaa Bunseedhur v. Koonwar Bindeseree Dull Singh(sic)(26) and Jan AH v. Jan Ali I.B.L.R.A.C.J. 56 : W.R. 154 : 3 Mad. Jur. 474 : 1 Ind. Dec. (N.S.) 158, and we shall presently consider the English and Irish decisions mentioned. We must not overlook, however, that the decision of the Full Bench is binding on us, until it is set aside be the Full Court or a contrary Full is enunciated by the Judicial Committee. The appellant has, indeed, invited us to hold that the Full Bench decision, which so far as we know, has not been challenged in this Court since 1868, is erroneous. We are not prepared to accept this contention. The decision, as we have seen, does not Jay down an inelastic or inflexible rule; on the other hand, it enables the Court to determine each case upon its own merits and to decide whether, in accordance with the principles of justice, equity the good conscience, the sale should or should not be set aside as against the purchaser. The principle that, in allocates for which no specific statutory directions are given, Judges should act according to justice, equity and good conscience, was expressly formulated in Section 93 of the Administration
11. The principles applicable to cases of this character are concisely stated by Sir Edward Sugden (afterwards Lord St. Leonards) in his classical treatise on the Law of Vendors and Purchasers (14th Eq., 1862, page 110):
If a decree is obtained by fraud, it may be relieved against, and it has been said that a purchaser is bound to see that, at least as far as appears on the face of the proceedings before the Court, there is no fraud in the case; but, if the Court itself be imposed upon, It would be strong measure to imply notice of the fraud to the purchaser, from the very proceedings before the Court. But it is a settled maxim that persons purchasing under decrees of the Court, as a general rule; are bound to see that the sale is made according to the decree. And this more specially applies to the plaintiff in the cerise; of course, the purchaser making use of the machinery of the Court to obtain the estate fraudulently as against the persons entitled to the inheritance, although with the concurrence of the tenant for life, cannot sustain his purchase; but a bona fide sale cannot be impeaches, simply because the suit was in fact instituted for the purpose of carrying it into execution. The tenant for life cannot be permitted in such a sale to obtain a benefit at the expense of the remainder man, and if the purchaser permit him to do So, that may in some cases vitiate the sale, although, the Court, if the transaction was not fraudulent, will struggle to correct the misapplication, and not rescind the sale.
12. The principles upon which a Court of Equity acts in setting aside a sale had under a decree, were elaborately discussed by Sir Edward Sugden, when Lord Chancellor of Ireland in the case of Bowen v. Evans (1843) 1 J. and L. 178 : 6 Ir. Eq. R. 669 : 68 R.R. 242 which was subsequently taken tip to the House of Loros; Bowen v. Evans (1848) 2 H.L.C. 257 : 81 R.R. 136 : 9 E.R. 1090. Reference was made to the Decisions of Lora Redesdale in Kennedy v. Daly (1804) 1 Sch. and Lef. 355 at P. 377 and Giffard v. Hort (1804) 1 Sch and Lef. 386 at P. 399 where purchases on the basis of fraudulent decrees were pronounced to be of no effect as the purchaser was aware of, if not a party to the fraud. To the same effect is the decision of Manners, L.C, in Blake v. Foster (1813) 2 Ball and B. 387. On the other hand, in Bennett v. Ramill (1806) 2 Sch. and Lef. 566 Lord Redesdale held that the purchaser was not affected by error in the decree and observed as follows: 'A purchaser has a right to presume that the Court has taken the steps necessary to investigate the rights of the parties, end that it has on that investigation properly decreed a sale; then he is to see that this is a decree binning the parties claiming the estate, that is, to see that all proper parties to be bound are before the Court; and he has further to see that taking the conveyance he takes a title that cannot be impeached aliened,' This was substantially the view adopted by Manners, L. C, in Ltght burn v. Swift (1812) 2 B.L. and B. 107. Amongst other cases mentioned by Sir Edward Sugden in Bowen v.Evans (1843) 1 J. and L. 178 : 6 Ir. Eq. R. 669 : 68 R.R. 242, are the decision of the House of Lords in Gore v. Stacpoole (1813) 1 Dow. 18 : 14 R.R. 1 : 3 E.R. 607; Colclough v. Bolger (1816) 4 Dow. 54 : 16 R.R. 24 : 3 E.R. 1087; Colclough v. Sterum (1828) 1 Moll. 39 at P. 92 and Bundon v. Becher (1853) 9 Bligh (N.S.) 532 : 3 Cl. and F. 479 : 5 E.R. 1388. In each of these cases, relief was granted on the ground of fraud, and it was established that the purchaser, if not a party to the fraud, had notice thereof, actual or constructive; they will be found analysed by the Edward Sugden in his treatise of the Law of Property as administered by the House of Lords, 1849, Chapter VI, Section iii, pages 679-720. In one of the teases Gore v. Staopoole (1813) 1 Dow. 18 : 14 R.R. 1 : 3 E.R. 607 Lord Redesdale doubted whether even a purchase under the decree, without notice of the fraud, would be a protection, as he held it clear that a purchaser was bound to see that, at least so far as appeared on the face of the proceedings before the Court, there was in fraud in the case. Sir Edward Sugden hesitated to go as far as Lord Redesdale and observed in Bowen v. Evans (1848) 2 H.L.C. 257 : 81 R.R. 136 : 9 E.R. 1090: 'That goes a great way, and I should act upon that opinion with very great precaution. If I found a purchaser baying where fraud appeared clearly on the face of the decree, I should hold him to have notice of it; but I should have much hesitation in visiting a purchaser with the consequences of what might be deemed implied notice of a fraud which was not discovered by the Court, or the officers of the unit, or the Counsel concerned in the cause, whose duty it is not to permit the Court to make a decree not warranted by the facts of the case;' see also Lansdowne v. Beauman (1828) 1 Moll. 39 at P. 92 where Hart, L. C, referred to the observations of Lord Redesdale in Giffard v. Hort (1804) 1 Sch and Lef. 386 at P. 399 and expressed the opinion 'that the utmost caution should be used in touching sales under decrees, and that nothing could be more dangerous than for the Court to strain the effect of notice, for the purpose unsettling the transaction of an honest purchaser under a decree.' In this connection reference may be made to the decision of the House of Lords in Mullins v. Townseni (1831) 2 Dow and Cl. 430 : 5 Bli. (N.S.), as an illustration of a case where the irregularities in connection with the sale were Sograveand manifest that the Court had no difficulty in condemning the transaction as fraudulent and in cancelling the sale which had been made at an undervalue. The cases of Lloyd v. Johnes (1805) 9 Ves. 37 : 7 R.R. 147 : 32 E.R. 514 and Curtis v. Price (1805) 12 Ves. 89 8 R.R. 303 : 33 E.R. 35, which are mentioned in Bowen v. Evans (1843) 1 J. and L. 178 : 6 Ir. Eq. R. 669 : 68 R.R. 242, furnish instances, not of fraud but of irregularity in the proceedings, and it was accordingly held by Lord Eldon, in the one case and by Sir William Grant, M.R., in the other, that the purchaser should not lose the benefit of his purchase. The decision in Townsend v. Warren (1812) 1 J. and L. 221 : 6 Ir. Eq. Rep. 620, which was heard in the first instance by Manners, L.C. and subsequently affrmed by the House of Lords was based upon very special facts, as explained by Sir Edward Sugden in Bowen v. Evans(1812) 2 B.L. and B. 107 and also in his Lawef Property page 712. The sale was allowed to stand, though a fraud had clearly been practised on the inheritance and the purchaser was a &arty; thereto; the case, however, was treated by Lord Chancellor Manners erroneously, as, it subsequently transpired, as one of irregularity, and relief was confined to the award of the full and fair value of the property at the time of the sale. On the other hand, in Thomhill v. Glover (1848) 3 Dr. and War. 195 Sir Edward Sugden in 1842 set aside a sale which had taken place in 1808, asitappeared that the machinery of the Court had been, resorted to efrectuate a sale made, not by the order of the Court, but by a contract entered into behind the back of the Court and though he deplored that the Court should be required to interfere after such a lapse of time, he added that he must not, in the words attributed by Lord Harcourt to Twisden, J., in Attorney-General v. Sutton (1721) 1 P.Wm. 754 at P. 765 : 24 E.R. 600 'steal leather to make poor men shoes.' We may add that in Beioley v. Carter (1869) 4 Ch. App. 230 at PP. 238, 239 : 17 W.R. 300 Selwyn, L.J., quoted with approval the following passage from the judgment of Sir Edward Sugden in Bowen v. Evans (1843) 1 J. and L. 178 : 6 Ir. Eq. R. 669 : 68 R.R. 242 which sets out succinctly the reasons why a judgment and sale should not be permitted to be impeached to the detriment of an innocent purchaser:
First there is Lloyd,v. Johnes (1805) 9 Ves. 37 : 7 R.R. 147 : 32 E.R. 514 in which Lord Eldon held that the purchaser should not lose the benefit of his purchase by reason of fn irregularity in the proceedings; that cast-has been explained by lord Redesdale in Bennett v. Hamill (1806) 2 Sch and Lef. 566 and by Sir W. Grant in Curtis v. Price (1805) 12 Ves. 89 8 R.R. 303 : 33 E.R. 35. Lord Redesdale seems not to have entirely Agreed with Lord Eldon, but, with great deference to the high authority with whom I am compelled to differ, I entirely subscribe to the doctrine of lord Eldon. In Curtis v. Price (1805) 12 Ves. 89 8 R.R. 303 : 33 E.R. 35, the Master of the Rolls, though not called on to decide the point, declared his opinion to be, that although accounts were not taken or inquiries directed which ought to have been taken and directed, let it being the act of the Court it could not affect the purchaser and he was also of opinion that a direction by the Court to pay the purchase-money to a wrong person would not affect the purchaser. I entirely sub scribe to that opinion. I think that, though there may have been some advantage taken of the parties to the cause, it ought not of itself to constitute a ground for impeaching the sale for it would be extremely' dangerous to impress upon the minds of purchasers under decrees that that which had escaped the vigilance of the Court, of its officers, and of the Bar, would front a sufficient ground to set aside a sale, I could not lay down a rule more mischievous to the suitors of the Court and the interests of the public, for it is of the greatest importance that sales made under the authority of the Court should not be lightly set aside.
13. Reference may also be made in this connection to Gavin v. Hadden (1871) 3 P.C. 707 8 Moo. P.C. (N.S.) 90 : 3 L.R.P.C. 707 : 17 E.R. 247.' We may take it, then, that a judgment which has been obtained by fraud, either in the Court, or of one or more of the parties, can be impeached by means of an action, and can be set aside against those who procured it by fraud: Toulmin v. Steere (1817) 3 Mer. 210 : 17 R.R. 67 : 36 E.R. 81; Gammell v. Sewell (1858) 3 H. and N. 617 : 17 R.R. 878 : 27 L.J. Ex. 447 : 4 Jur. (N.S.) 978 : 32 L.T. (O.S.) 96 : 157 E.R. 615; Coaks v. Bosuell (1858) 3 H. and N. 617 : 17 R.R. 878 : 27 L.J. Ex. 447 : 4 Jur. (N.S.) 978 : 32 L.T. (O.S.) 96 : 157 E.R. 615; Boswell v. Coaks (1894) 6 R. 167; Schedden v. Patrick (1894) 6 R. 167. There is, however, atleastcne exception to this rule; for, as stated by Cozens-Hardy, L. J., in Blrch v. Birch (1902)P. 130 : 71 L.J.P. 58 : 86 L.T. 364 : 50 W.R. 437 :18 T.L.R. 485 although in most casts a judgment obtained by fraud can be set aside only as against the person who committed or procured the fraud, this limitation does not apply to an action to set aside a judgment granting Probate of a Will, inasmuch s a Will must be either good or bad against all the world.
14. Reference has sometimes been made in the discussion df this question, as in Chitambar v. Krlshnappa 26 B. 543 : 4 Bom. L.R. 259, to the class of cases which hold that a stranger who purchases in execution of a decree is not affected by the subsequent cancellation or reversal of the decree: Chunder Kant v. Blssessur (1894) 6 R. 167; Jan All v. Jan All I.B.L.R.A.C.J. 56 : W.R. 154 : 3 Mad. Jur. 474 : 1 Ind. Dec. (N.S.) 158; Zalnul Abdin v, Muhammad Asghar 15 I.A. 12 : 10 A. 166 : 5 Sar. P.C.J. 129 : 6 Ind. Dec. (N.S.) 112 (P.C.); Mukhoda Dassl v. Gopal Chunder Dutta 26 c. 734 : 3 C.W.N. 7665 : 13 IN dFC. (n.s.) 1069; Jnderjit v. PooteeBegum 19 W.R. 197; JanaMhanLa.lv. Gossain LalBhayet 1 Ind. Cas. 871 : 37 C. 107 :11 C.L.J. 254 : 13 C.W.N. 710; Nagendra Nath Basu v. Parbatp Charan Koyal 35 Ind. Cas. 339 : 20 C.W.N. 819. The principle which lies at the root of this class of cases was investigated in Krishna Chandra v. Jogendra Naraln 27 Ind. Cas. 139 : 20 C.L.J. 469 : 19 C.W.N. 537 and does not logically require extension to cases where a fraud has been committed on the Court itself. The rule that a stranger purchaser is not affected, by the reversal of the decree for error or irregularity is based, as the cases show, on grounds of public policy, though it operates harshly upon the person whose, f property has been sold, and who it may turn out in the end was not liable at all to the plaint in. It is at least questionable whether this rule should be made to probed within its scope the class of cases : where fraud has been committed upon tie Court, which, though established for the ' administration of justice, has been utilised by an unscrupulous litigant for the accomplishment of a dishonest purpose; such an extended application of the rule: would undoubtedly tend to encourage fraud.
15. The question under consideration has, as may be anticipated, frequently come under examination in the Courts of the United States and the balance of judicial opinion there favours the view that a bona fide purchaser for value without notice at an execution sale, is not affected; by infirmities in the judgment or proceedings subsequent there to, 'which do not ' appear on the face of the record, such as secret vices, frauds, defects or other infirmities; see freeman on Void Judicial Sales, Section 41; freeman on Judgment Section 509; Freeman on Executions, Section 342; Kleber on Void Judicial and Execution Sales, Section 369, Rorer on Judicial and Execution Sales, Sections 570, 1101. The adoption of the rule has been often challenged, but has been defended on grounds which are best stated in the judgment of a Full Bench of the Supreme Court of California in Reeve v. Kennedy (1872) 43 Cali. 43 where Crockett J observed as follows:
No principle is better settled than that a purchaser at a judicial sale, without notice under proceedings regular on their face and bad in a Court of competent jurisdiction, is not affect by the error of the court; for which the judgment might be reversed on appeal, nor for any secret vice in the judgment, not appearing on the face of the record and which can be made to appear only by the product of extrinsic evidence. He is bound at his peril to inquire whether it sufficiently proper on the face of the record that the Court had jurisdiction to render the judgment, and whether, there is a valid execution. But nothing more is required of him. Unless the plaintiff in the action be also the purchaser at the sale, the latter will not be affected by any mere error of the Court, even though the judgment be afterwards reversed for such error; nor can his rights be impaired by any secret vice in the proceedings, resulting from fraud or other similar cause of which he had no notice. As between the parties to the action, a judgment fraudulently obtained will be set aside and held for naught when the fraud is made to appear. But there would be no security in titles acquired at judicial sales if the rights of a bona, fide purchaser, without notice, could be over thrown by subsequent proof that the judgment was obtained by fraud, or that the record which showed a due service on the defendant, was in fact false. The repose of titles, and indeed every consideration of public policy, demands that a purchaser at a judicial sale, without notice, under proceedings regular on their face, and by a Court of competent jurisdiction should be protected as against mere errors of the Court, and against secret vices in the proceedings founded on fraud, accident or mistake, and which can only be made to appear by the proof of extrinsic facts not appearing on the face of the record. No prudent person would' purchase at a judicial sale, if he incurred the hazard of losing his money, in case it afterwards should be made to appear that the judgment was obtained by perjury or other fraudulent practices, or that the record on which he relied, as proving a service on the defendant, was in fact false. These propositions are too familiar to require the citation of authorities in their support and we have been referred to none which appear to contravene them, unless it be two cases decided by the Supreme Court of Iowa Hansby v. Blackman (1861) 20 Lewa 128; Bryant v. Williams (1856) 21 Lowa. 229. The principle settled in those cases to, that a defendant in an action, who was not a resident of the State, and was not served with process by publication or otherwise, and for whom an Attorney with out authority had entered an appearance, might afterwards, on proof of these facts, recover the property sold under the judgment from a bona fide purchaser, without notice. It is unnecessary, for the purposes of this case, to examine the reasoning on which these decisions are founded. But if the peculiar facts of those cases should take them out of the general rule to which I have adverted, it would only prove that the rule, in its broadest sense, is not wholly without an exception and would not impugn the rule itself. If an unauthorised appearance by an attorney, for a non-resident defendant, who was not served with process, can be afterwards shown to invalidate the title of a bona fide purchaser without notice at the execution sale, it stands, so far as I am aware, as a solitary exception to the general rule, and the doctrine ought not to be further extended.
16. This was followed by the Supreme Court of Virginia in Marrow v. Brinkley (1888) 85 Va. 55 : 5 S.E. 605, and when an attempt was made to question that decision before the Supreme Court of the United States, the application for leave to appeal was rejected: Marrow v. Brinkley (1889) 129 U.S. 178 : 32 : 32 Law.Ed. 654. The question was again elaborately discussed by the Supreme Court ,pf North Carolina in Millsaps v. Estes (1904) 137 N.C. 585 : 70 L.R.A. 170 : 107 Am. St. Rep. 496 : 50 S.E. 227 and in Yarborough v. Moore (83), and the rule was re-affirmed that innocent purchasers at a judicial sale, who had no notice of any irregularity in the proceeding s and the judgment under which the sale was made, would be protected in their purchase, where the Court had jurisdiction of the inertias and subject-matter of the proceeding and the judgment on its face authorised a sale. The rule has been enunciated in similar terms and recognised or applied without question, in New Yark in Clarke v. Davenport (1857) 14 N.Y. Sup. Ct. 95, in Alabama in Dunklin v. Wilson (1879) 64 Alabama. 162, in New Jersy in Wilson v. Hoffmzn (1901) 50 Ati. 592, in Maryland in Spindler v. Atkinson (1852) 3 Maryland 409 : 56 Am. Dec. 755, in arsanusas in Carden v. Lane (1886) 48 Ark. 216 : 2 S.W. 709 : 3 Am. St. Rep. 228 and in Missouri in Hellenan v. Ragsdale (1906)199 Mo. 375 : 97 S.W. 890. The Courts in the United States have, however, struggled to 'void the manifest hardship, if not injustice, of the application of the rule by the adoption of two principles: (i) they have drawn, a distinction between judgments which are void and Voidable and they have ruled that if the judgment is voic, even a bona fide purchaser does not acquire an unimpeachable title; Rankin v. Schofield (1906) 81 Ark. 440 : 98 S.W. 674; McDonald v. Rankin (1909) 92 Ark. 173 : 122 S.W. 88; Taylor v, Savage (1813) 1 Howard 282 : 11 Law. Ed. 132; Mitchell v. Maxeni (1866) 4 Wallace 273 : 71 U.S. xviii, 326; Lamister v. Keelero (1887) 123 U.S. 376 : 31 Law. Ed. 238; (ii) they have held that a person is not a bone fide purchaser, unless he purchases without notice, actual or constructive, of the title or equity claimed to be superior to his rights as purchaser, and knowledge sufficient to put a reasonably prudent man on enquiry is constructive notice; in other words, though an execution purchaser need not be in a mood to scent fraud, he need not have complete information of every fact material for him to know; he is bound to make enquiry when there is anything that would excite the suspicion of a prudent man and place him on his guard: Barnes v, Mcclinton (1831) 3 Pen. And w. 67 : 23 Am. Dec. 62; Gibson v. Winslow (1863) 46 Pa. St. 380 : 84 Am. Dec. 552; Farr v. Sims (1832)Richardson Eq. Cas. 122 : 24 Am. Dec. 396; Lang Syne Gold Min. Co. v. Ross (1888) 20 Nev. 127 : 18 Pac. 358 : 19 Am. St. Rap. 337; Pettis v. Johnston (1920) 190 Pac. 681. In this way, by judicious application of the doctrine of constructive notice, the Courts of the United States have sought to avoid the harsh results which sometimes follow from the application of the stringent rule that the title of a purchaser in good faith and for value at a judicial sale should be considered Invulnerable against en assault, wherein it is attempted to be shown that the judgment was procured fraudulent machinations an d misrepresentation of others, provided he is neither chargeable with notice thereof nor guilty of participation therein.
17. We are thus brought back to the rule enunciated by Sir Barnes Peacock in Abdool Hye v. Nawab Raj 9 W.R. 196 : B.L.R. Sup. VoL. 911, namely, that in cases of this character, where a stranger has purchased, the Court should determine whether it will be in accordance with the principles of justice, equity avid good conscience to set aside the sale. The Court has in fact, to reconcile two conflicting principles. On the one hand, as De Grey, C.T., said in R. v. Duchess of Kingston (1776) 20 How. St. Tr. 544 : 2 Sm.l.c. 754, fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of Courts of Justice, and, it the words of Lord Coke, avoids all judicial acts, ecclesiastical and temporal. James, T,.J., emphasised the same idea when he stated in Vane v. Vane (1873) 8 Ch. App. 383 at p. 397 : 42 L.J.CH. 299 : 28 L.T. 320 21 W.R. 252 that a Court of Equity will wrest property, fraudulently acquired, not oily from the perpetrator of the fraud but, to use Lord Cottenham's language in Trevelyan v. Charter (1835) 4 L.J. Ch. 209 at p. 214 : 8 Jur. 105, affirmed by the HoiiKfc of Lords in Charter v. Trevelyan (1844) 1 Ch. And F. 714 : 65 R.R. 305 : 8 E.R. 1273, from his children and his children's children or, as was said in Htiguenin v. Baseley (1807) 14 Ves. 273 : 9 R.R. 148 : 1 Wh. And T.L.C. (7th Ed) 247 : 33 E.R. 526 and Bridgeman v. Green (1757) Wilmot 58 : 2 Ves. 627 97 E.R. 22, from any persons amongst whom he may have parcelled out the fruits of his fraud, and will restore it to these from whom it has been fraudulently abstracted. On the other hand, as Lord Lough borough said in Jerrard v. Saunders (1794) 2 Ves. 454 at p. 458 : 30 E.R. 721, against a purchaser for valuable consideration without notice, the Court will not take the least step imaginable, which is only a re-statement of the pronouncement of Lord Northington in Stanhope v. Earl Verney (1761) 2 Eden 81 at p. 85 : 28 E.R. 826, that a purchase without notice for a valuable consideration is a bar to the jurisdiction of the Court; see also similar expressions, perhaps more cautiously phrased, by Lord Loughborough in Strode v. Blackburne (1796) 3 Ves. 221 : 30 E.R. 979 by iora Eldon in Wallwyn v. Lee (1803) 9 Ves. 24 at p. 34 : 7 R.R. 142 : 32 E.R. 509, and by record Romilly in Attorney-General v. Wilkitis (1853) 17 Beav. 283 at p. 291 : 99 R.R. 149 : 22 L.J. Ch. 830 : 17 Jur. 885 : 1 W.R. 472 : 51 E.R. 1043. On the facts of each case, the Court has to determine which of these doctrines should prevail. In the solution of the problem we have to bear in mind that the protection given to the bona fide purchases had its origin exclusively in equity and is based entirely upon the conception that a Court of Equity acts solely upon the conscience of litigant parties, by compelling the defendant to what, and only what, in for nonscientist he is bound to do. If the relations between the two contestants standing before the Court are such that, is equity and good conscience, the plaintiff ought to obtain the aid which he asks, and the defendant ought to do or suffer what is demanded of him, then the Court will interfere and grant the relief; if the relations are not of this character, then the Court will without its hand and will leave the parties where they stand. The protection given to the bona fide purchaser, therefore, simply means that from the relations subsisting between the two parties, specially that which is involved in the innocent position of the purchaser, equity refuses to interfere and to aid the plaintiff in what he is seeking to obtain because it would be unconscientiously and inequitable to do so; that Court will not in such an event, aid either party against the other. The doctrine of bona fide purchase is thus not a rule of property. It does not determine the question of title between parties. It is in most cases available only by way of defence. It is a shield in the hands of a defendant, to protect him against the claim of his adversary. It means that equity will refuse to interfere to aid the plaintiff in his suit, because, under the circumstances of the case, it would he unconscionable that the plaintiff should have what he seeks to obtain. It enforces no right, but simply refuses to interfere in the plaintiff's behalf. We are not concerned here with the very exceptional cases where a bona fide purchaser is aided by affirmative relief, by reason of the of the party holding the prior title or interest; these need not be exhaustively enumerated and classified for our present purpose, but examples are furnished by the decisions in Savage v. Foster (1723) 9 Mod. 35 : 88 E.R. 209; Ibbotison v. Rhodes (1706) 2 Vernon 554 : 23 E.R. 958; West v. Jones (1851) 1 Aim. (N.S.) 205 : 89 R.R. 67 : 20 L.J. Ch. 362 : 61 E.R. 79; Dillon v. Costelloe (1827) 2 Molloy 512; Hickson v. Aylwerd (1828) 3 Molloy 1; Wallade v. Lord Donegal (1837) 1 Dr. and War. 461. But apart from such special instances, the doctrine is applied for the protection of the defendant in cases which have been grouped by Lord Westbury in to three classes in Phillips v. Phillips (1862) 4 De G.F. and I. 208 : 135 R.R. 971 : 31 L.J.Ch. 321 : 8 (N.S.) 145 : 5 L.T. (N.S.) 655 : 30 W.R. 23 : 31 R.R. 1164;(i) where an application is made to the auxiliarn jurisdiction of the Court by the possessor of a legal title; (ii) where the plaintiff holding an equitable estate or interest seeks to enforce it against a purchaser of the legal title, and (iii) where the plaintiff seeks to enforce some equity as distinguished from an equitable estate, as the re-formation of a deed on account mistake or its cancellation on the ground of fraud. In each case, it must be remember that the doctrine is confined; to Courts of Equity and is in no sense a rule of property but is a rule of inaction. In such circumstances, the most convenient course to follow is obviously to enunciate the rule in an elastic form, adaptable to varied combinations of circumstances, as was done by Sir Barnes Peacock in Abdool Bye v. Nawab Raj 9 W.R. 196 : B.L.R. Sup. Vol. 911. In the application of that rule to a concrete case, we may usefully bear in mind that a bona fide purchaser for value without notice has always been a favourite with Courts of Equity. But to crystallize the rule further, won la only he to impair its utility. Thus alone can we give effect to the elementary truth that the law is progressive and expansive, adapting itself to the new-relations and interests which are constantly springing up in the progress of society, though the progress of the law must be by analogy to what is already settled.
18. Tested in the light of these principles, how does the case for the defendant stand? We have seen that in 1904, the landlords sued the present plaitiffs to recover Rs. 2-2-0 as arrears of rent. It has not been investigated whether the claim was real or illusory. This much is known that the processes Were suppressed, false returns were submitted to the Court, and an ex parte decree was obtained, the decree was not executed for three years. Processes were again suppressed, false returns submitted and the sale held on the 21st November 1907, when Behari Lal Das became the purchaser for an insignificant sum. The judgment-debtors were not present; there were no bidders; there was no competition. Any purchaser, however optimistic, could, in such circum-stances, have inferred that there must have been something wrong with the proceedings. Das, after his purchase, never obtained delivery of possession and, never paid rent to the landlords; the original tenants were accordingly left in undisturbed occupation as before. The landlords next sued the widow of Das this time for the recovery of Rs. 15-7-6 and obtained an ex parte decree on the 24th June 1913, as processes were suppressed and false returns submitted to the Court. The sale was not held till after the lapse of more than three years, on the 21st November 1916, when the appellant, Biseswar Ghose became the purchaser for a small sum. The processes in execution had not been served. There were no bidders; there was no competition. If the intending purchaser bad made any enquiry, he would have found that, not the judgment-debtor, then widow of Das but the original tenants were in occupation. This would have a reasonable man on his guard; Barnhart v. Greenshields (1893) 9 Moo. P.C. 18 : 105 R.R. 1 : 1 E.R. 204; Mancharjl Sorabji Chulla v. Kongseoo 5 B.H. C.R. 59; Hakeem Meah v. Beejoy Patnee 22 W.R. 8; Radha Madhav Paikara v. Kaipatutu Roy 9 w.r. 196 : B.L.R. Sup. Vol. 911. The fact remains that the appellant was able to secure the property for an insignificant sum. We cannot hold, in these circumstances, that the bona fide of the first 0 or of the second purchase were as unquestionable as their fortune in acquiring a property at a fraction of its value without contest or competition. In our opinion, it would be a well-merited reproach to the administration of justice if we were complete to uphold execution purchases of this description., by the application, without discrimination, of the rormula of bona fide, purchaser for value without notice.
19. We feel no doubt that the Subordinate Judge has rightly set aside the sale and decreed the suit; his decree must consequently be affirmed and this appeal dismissed With costs.
20 I agree in the view that this appeal should be dismissed with costs. The circumstances of the case as found by the lower Appellate Court indeed the mere dates of the decrees and executions, coupled with the fact that Behari Das was never in possession convince me that the defence of 'purchaser for value without notice' has no basis in the facts. There is simply no room for it. There is an express finding that he was not a bona fide purchaser and, in the circumstances detailed by the learned Subordinate Judge, any other finding would have been inexplicable. Neither by his pleading nor by the way in which issues were taken at the trial, or points advanced on first appeal has the purchaser done anything to entitle him to complain that the judgment of the Court below is an insufficient analysis of the facts as to this part of the case. It may be taken that there was some room for controversy upon the facts as the Courts below were not in agreement. But I see no error of law and, on the facts stated by the learned Subordinate Judge, I see no escape from his conclusion. The judgment of Jenkins, C.J., in Bombay case Chitatmbar v. Krishnappa 26 B. 543 : 4 Bom. L.R. 249, decides merely that inadequacy of price, in the absence of notice of the fraud or defect in the proceedings, does not give rise to a right to have the sale set aside. It in no way throws doubt upon the proposition that judicial sales fraudulently procured will not give a good title to a purchaser who does not take in good faith and without notice. The fact that the Court has been successfully deceived is one which, upon the issue as to the purchaser's good faith, must be of very different value indifferent circumstances. In this present case this consideration goes but a little way. In other cases it may go almost all the way. But in all cases the burden of-proving that he acted in good faith and without notice of the fraud is in the first instance upon the purchaser. This, in my opinion, is an essential feature of the equitable rule. The rule is not that there is a special favour 'for every one until he is shown to have been dishonest or a volunteer, but that equity, where it can, will favour those who show that in innocence they have given value.