1. This appeal arises out of a suit instituted by the plaintiffs-respondents for recovery of Rs. 1,054-13 18 dam under the following circumstances: in 1907 one Parmeshwar executed a mortgage in favour of the predecessor-in-title of the present plaintiffs in respect of an 8-annas share of a certain revenue-paying property. In 1920 the plaintiffs instituted a suit to enforce the mortgage of 1907. This 8-annas interest was put up for sale for non-payment of the arrears of Government revenue and was purchased on the 29th June, 1921, by one Basant who conveyed it to the defend” ant on the 24th March, 1922. It is obvious that the revenue sale had not the effect of extinguishing the mortgage in favour of the plaintiffs as the property which was involved in the revenue sale was a moiety of the revenues-paying property. On the 26th September, 1921, the plaintiffs obtained a mortgage decree and on the 24th April, 1922, they obtained a final decree. The plaintiffs took out execution and on the 12th September, 1922, they purchased the property in execution of the mortgage-decree. Between the 12th September, 1922, and the 12th June, 1923, they paid four installments of Government revenue and the claim in the present suit includes the sums paid by them between those two dates. In the meantime the present defendant took proceedings for setting aside the sale under the provision of Order XXI, Rule 90 of the Code. On the 12th June, 1923, the sale was set aside. The plaintiffs thereupon took fresh steps to execute their decree and during the period the execution proceedings were pending, that is to say, between the 12th June, 1923, and the 17th March, 1924, they paid certain other sums as Government revenue due in respect of the property which is the subject-matter of the mortgage. On the 17th March, 1924, the property was again put up for sale and was purchased by one Ramtaran. On the 5th December, 1924, the suit was instituted by the plaintiffs against the defendant for recovery of the sums from time to time paid by them as Government revenue in respect of the mortgaged property. The suit was framed under the provision of Section 69 of the Indian Contract Act and it was the contention of the plaintiffs that they were interested in the payment of the Government revenue which the defendant was bound by law to pay and that in these circumstances, having paid the money, they are now entitled to be reimbursed by the defendant. As I have said, the defendant was the person who took a conveyance from Basant who was the revenue purchaser on the 29th June, 1921. The defendant has no longer any interest in the property and it is doubtful whether at any period he was sufficiently interested to make any payment towards the Government revenue. The learned Judge in the Court below has acceded to the argument advanced before him on behalf of the plaintiffs and has given the plaintiffs a decree substantially as claimed by them.
2. I am unable to agree with the decision of the learned Subordinate Judge. In order to succeed the plaintiffs must establish first that they were interested in the payment of the money; and, secondly, that the defendant was bound by law to pay the money. The question is whether after the purchase of the property by the plaintiffs on the 12th September, 1922, the defendant was bound by law to pay the Government revenue. Now on this point Mr. Khurshed Husnain has referred us to the decision of the Judicial Committee in Bhawani Kumar v. Mathura Prasad Singh 16 Ind. Cas. 210 : 16 C.W.N. 985 : 23 M.L.J. 311 : 12 M.L.T. 352 : (1912) M.W.N. 244 : 14 Bom. L.R. 1046 : 16 C.L.J. 606 : 40 C. 89 : 39 I.A. 228 (P.C.). The facts in that case were as follows: The mortgagee purchased a property which was the subject-matter of the mortgage in his favour on the 19th March, 1900. The March kist fell in arrear on the 28th March, 1900, before the sale in favour of the mortgagee was confirmed. The mortgagee did not pay the Government revenue in respect of the March kist with the result that it Was put up for sale and was purchased by the defendant in the action. On the 23rd April, 1901, the sale in favour of the mortgagee was confirmed. The mortgagee purchaser thereupon instituted a suit to enforce his mortgage as against the revenue purchaser and the question arose whether he had any lien to assert as against the revenue purchaser after the purchase of the 19th March, 1900. Now it may be pointed out that this case was decided under the Code of 1882. Section 316 whereof provided as follows: “When a sale of immoveable property has become absolute in manner aforesaid the Court shall grant a certificate stating the property sold and the name of the person who at the time of the sale is declared to be the purchaser. Such certificate shall bear the date of the confirmation of the sale; and, so far as regards the parties to the suit and persons claiming through or under them, the title to the property sold shall vest in the purchaser from the date of such certificate and not before.” Now it might fairly have been contended under Section 316 of the Code of 1882 that title to the property did not vest in the mortgagee-purchaser until the 23rd April, 1901, and that accordingly it was not his duty to pay the kist which had accrued due on the 28th March, 1900, and that, therefore, he was not the full owner of the property and that he had still a lien to assert as against the revenue purchaser, It was, however, held by the Judicial Committee that his purchase took effect from the 19th March, 1900, and that, therefore, it was his duty to pay the Government revenue when it accrued due on the 28th March, 1900. I may usefully appropriate the following passage from the judgment of Lord Shaw in that case: “It was maintained in argument for the mortgagee” says his Lordship, “that the true meaning of this was that the sale to him did not become a legal fact until the 23rd April. In their Lordships opinion, this is an understatement and a misstatement of the mortgagee’s rights. It is true that upon that date the sale was confirmed, but what was, as the certificate bears, confirmed, was a sale, ‘by public auction on the 19th March, 1900’. There seems little reason to doubt that upon the 19th March, all the lands sold had been transferred to the mortgagee, and that if there had been any accretions to the property between that date and the date of confirmation, those accretions would have become the property of the purchaser. On the other hand, there seems no legal principle which would leave untransformed to the mortgagee, any obligations which arose during the same period.” Now it seems to me that the case is far stronger under Section 65 of the new Code which provides as follows: “Where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.” Now under the old Code, that is to say, the Code of 1882 many difficulties arose, as for in-stance, where a prior purchaser obtained a certificate later than the subsequent purchaser. The difficulty was solved by the Courts taking the view that the purchaser had a good title in equity from the date of the sale which became an absolute title Upon the confirmation of the sale. Now if this was the view taken under the Code of 1882, there seems to be no reason why we should not take the view under the present Code. In the present case the plaintiffs purchased the property on the 12th September, 1922. It is quite true that the sale has not been confirmed for it has been set aside, it appears, by the consent of the parties; but had the sale been confirmed, the property would be deemed to have vested in the plaintiffs on the 12th September, 1922. Now what then was the position on the 12th September, 1922 ? The plaintiffs were undoubtedly the owners of the property in equity. The defendant had no interest whatever in the property except such as gave him liberty to apply for setting aside the sale either under the provision of Order XXI, Rule 89 or under the provision of Order XXI, Rule 90 of the Code. This being the position, it seems to me perfectly clear that it was the duty of the plaintiffs to pay the Government revenue which accrued due upon the property between the 12th September, 1922, and the 12th June, 1923. The view which I take is in full accord with the decision of the Judicial Committee to which I have already referred. It seems to me that in this view-the plaintiffs cannot recover the Government revenue which they paid between September, 1922, and June, 1923.
3. It was contended, however, that they are in any event entitled to recover those sums of monies, if not under Section 69 of the Indian Contract Act at least under the third paragraph of Section 9 of Act XI of 1859. That paragraph provides as follows: “And if the parsons so depositing, whose money shall have been credited as aforesaid, shall prove before a competent Civil Court that the deposit was made in order to protect an interest of the said person, which would have been endangered or damaged by the sale, or which he believed in good faith, would have been endangered or damaged by the sale, he shall be entitled to recover the amount of the deposit, with, or without interest as the Court may determine, from the defaulting proprietor.” Now in the view which I take of the case the plaintiffs were the proprietors in equity between the sale was set aside. Now if this be so, then clearly the third paragraph of Section 9 has no application. It obviously applies to a case where a parson not being a proprietor pays the Government revenue to protect his interest.
4. Now I come to the two last payments, one made in September, 1923, and the other in January, 1924. It was contended before us that the sale having been set aside on the 12th June, 1923, the defendant was from that date the owner of the property and was bound by law to pay the Government revenue and the plaintiffs as the mortgagees were interested in the payment of the money and having paid it are entitled to be reimbursed by the defendant; but it seems to me that the plaintiffs had no interest sufficient to entitle them to make the payment. If the revenue in respect of the 8 annas share was not paid, it would not affect the interest of the mortgagee in the slightest degree. He would be entitled to enforce his mortgage as against the revenue purchaser. This being the position, Section 69 of the Indian Contract Act has no application what ever.
5. I would allow the appeal, set aside the judgment and the decree passed by the Court below and dismiss the plaintiffs’ suit with costs in all the Courts.
Fazl Ali, J.
6. I agree.