1. This case comes before us upon an appeal from the decision of the District Judge of Midnapore, who has reversed the decision of the First Subordinate Judge.
2. The questions we have to determine are not free from difficulty; but upon the best consideration I have been able to give to the arguments which have been adduced on either side, the cases cited, and the judgment under appeal, I am of opinion that the decision of the lower Appellate Court is correct and should be affirmed. The facts of the case are as follows. His Lordship after stating the facts as above continued:
The District Judge has given her a decree for this 5 1/2-anna share, and against this decree the auction-purchaser, at the sale held on the 26th of September 1883, for arrears of Government revenue, has appealed; and it has been urged before us by the learned pleader for the appellant that this judgment is wrong and should be reversed. His principal ground of appeal is that the District Judge was wrong in holding that the plaintiff’s title to the 5 1/2-anna share, which was put up for sale, was not perfected and completed until the date of the sale certificate, the 18th December 1883. He contends that the sale was perfect and complete on the 17th August 1883; and that on that day the mortgage debt was extinguished, and the mortgage merged in the decree.
3. I think, having regard to the provisions of Section 316, Code of Civil Procedure, that this contention is not sustainable. It has been urged that, although the section says that “the 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,” yet as regards third parties the property vests in the purchaser from the date of sale. No doubt the Legislature does not introduce the words “third parties,” but if, as regards the parties to the suit and persons claiming through or under them, the title of the purchaser is not to be considered complete, nor the property to vest in him until the confirmation, we see no reason for holding that, as regards third parties, the title of the auction-purchaser is complete, and the property vested in him before the date of the confirmation of sale. If this view is correct, it seems to us that the plaintiff’s husband’s rights as mortgagee were kept alive and remained in existence until the property vested in him by virtue of the granting of the sale certificate, and that between the 17th August (the date of the sale) and the 18th December (the date of the confirmation of sale) his rights as mortgagee were all in existence, and the mortgage lien fully preserved in him. It may be that in addition to those rights he had other rights which it is not necessary to discuss.
4. What, then, is the position of the appellant, the auction-purchaser, at the sale for arrears of Government revenue? His position is regulated by the provisions of Section 54, Act XI of 1859, which says, “when a share or shares of an estate may be sold under the provisions of Section XIII or Section XIV, the purchaser shall acquire the share or shares subject to all encumbrances, and shall not acquire any rights which were not possessed by the previous owner or owners,”–he takes the property subject to the encumbrances, and it is sufficient, in my opinion, for the purposes of determining this case, to say that he takes it subject, among other encumbrances, to the mortgage lien, which, I am of opinion, was still subsisting in favour of the mortgagee. I do not think it necessary to go into the question of the encumbrance which may have existed upon the 5i-anna share by reason of the decree of the 30th June 1882. In my opinion this ground of appeal fails.
5. Then, it has been further urged that, by virtue of Section 73 of the Transfer of Property Act, the plaintiff has no lien upon the mortgage premises, but has a lien only upon the surplus sale proceeds in the hands of the Collector, after the payment of the Government revenue. I am of opinion that Section 73 does not operate to deprive the mortgagee of his lien. It is to be noted that this is a sale under the provisions of Section 13, Act XI of 1857, to which, as I have already pointed out, the provisions of Section 54 are applicable. If it bad been a sale under the provisions of Section 37, a purchaser in the position of the present appellant would have taken the property free from all encumbrances, the mortgage lien would have been extinguished, the mortgagee would have been free to avail himself of the provisions of Section 73, although his lien on the mortgaged premises had gone, he would have had a lien on the surplus proceeds in the hands of the Collector, after paying the Government revenue.
6. There remains now only one other further point to be considered. It has been urged by Baboo Srinath Das that at any rate the plaintiff in this case cannot be entitled to a decree for possession. I confess I have some hesitation with regard to what I am now going to say, but after giving the best consideration I can to what has been urged, I think the position of the parties is, that between the 17th August 1883 and the 18th December 1883 the judgment-debtor, the defendant No. 2, would have had a right upon payment of principal, interest and costs to redeem the property. There was an equity of redemption existing in the judgment-debtor, defendant No. 2, up to the 18th December 1883.
7. On the 26th September 1883 I think the present appellant stood in the shoes of the judgment-debtor, and he had a right to redeem at any time up to the 18th December. I think he purchased on the 26th September, with the knowledge of the previous decree obtained against the judgment-debtor, the mortgagor, and I think that if he wished to exercise the right which I think he possessed, he should have come forward and claimed between the 26th September 1883 and the 18th December 1883, to exercise the right to redeem. I think the right to redeem was completely gone on the 18th December, when the sale certificate was given, and the property absolutely vested in the mortgagee. In my opinion both these grounds urged, and urged, if I may be allowed to say so, with great ability, have failed.
8. I, therefore, think that this appeal should he dismissed with costs.
9. I may very briefly say I am also of opinion that this appeal must be dismissed with costs. It seems to me that; the broad principle which is laid down in Section 54 is that the purchaser under that section acquires the share he purchases subject to all encumbrances existing at the time of the sale. It is admitted that if the mortgage in this case had been existing at the time, it would certainly have been an encumbrance under that section, and the appellant, purchaser, would have taken the share subject to the mortgage. It appears to me to make very little or no difference that that mortgage had passed into a mortgage decree, and that in execution of that decree the property had been put up to sale, although the sale had not been confirmed. I think that, in accordance with the broad principle laid down in Section 54, the purchaser took the property subject (if one may say so) to the unconfirmed sale. If the purchaser had deposited the amount of the decree between the date of his purchase and the date of the confirmation of the sale, it is possible that the sale might have been set aside. He did not do so, however; and accordingly on the 18th December, when the sale was confirmed, the plaintiff became entitled to the possession of the property, and, therefore, the decree for possession was properly made by the lower Court.
10. In the view we take of the matter it becomes unnecessary to decide whether the words “the previous owner or owners” in Section 54 of Act XI of 1859 are to be understood as meaning the owners who made the default or the owners at the time of the sale. Neither is it necessary to determine whether or not the sale of August 1883 was complete as regards the purchaser before it was confirmed in December following. But as one of the Judges who decided the case of Prangour Mozoomdar v. Himanta Kumari Debya 12 C. 597, I wish to say that that case appears to have been argued and decided on the supposition that it was governed by Section 316 of Act X of 1877 before that section was amended by Act XII of 1879.
11. I concur in dismissing the appeal with costs.