JUDGMENT
Shib Chandra Prasad, J.
1. Defendants are the appellants. They have come up in appeal against the concurrent judgments of the Courts below in a suit filed by the plaintiffs for adjudication that the sale held in Money Execution Case No. 1188 of 1937 of the Munsif Second Court, Bhagalpur, in respect of the right of redemption of the plaintiffs with regard to the properties mentioned in the schedule of the plaint, which had been given in bharna to these defendants by the plaintiffs in 1931, being tainted with fraud, did not extinguish the right of redemption of the plaintiffs, ana the consequential relief sought for was that a decree for redemption should be passed in their favour.
It was alleged by the plaintiffs that they had tendered the bharna money after the due date o£ payment but the defendants declined to take it on the ground that their right of redemption had been extinguished by the auction-sale mentioned above. Plaintiffs held an enquiry and learnt that the defendants had fraudulently got the properties sold and had purchased them in the above-mentioned money execution case for a “grossly low sum of Rs. 175/-, although the properties were worth several thousand rupees.
2. It appears that the defendants had obtained an instalment decree for money against the plaintiffs and had attached some of the properties which were other than the properties in dispute. When there was default, the decree was executed and some of those properties were sold and purchased by these defendants. It was then alleged by the plaintiffs that there was an agreement between them and the defendants that they would not any further execute the decree for the balance amount which would rest satisfied by the sale already held and there would be no subsequent realisation.
This assurance by the defendants lulled the plaintiffs and they became satisfied that they did not owe any more sum on the previous decree, but the defendants with the dishonest intention to jeopardise the right of redemption of the pjaintiffs in these properties executed the dercee for the balance amount and after having fraudulently got all the processes in the execution case suppressed put the right of redemption of the plaintiffs in these properties to sale and purchased it themselves. It was alleged by the plaintiffs that this purchase by the defendants in the execution of that decree could not, r.nd did not, in law extinguish their right of redemption.
3. In defence, the defendants stated that the suit was barred under Section 47 of the Code of Civil Procedure; that there was an adjustment of the decree and this adjustment could not be taken cognizance of by the Court except under Order 21, Rule 2 of the Code of Civil Procedure, but that having not been complied with it was not open to the Court to act upon that adjustment. The main contention of the defendants, however, was that there was no such agreement between the parties by which these defendants had given up their right to execute the balance of their decretal dues against the plaintiffs; that they had not suppressed the processes of the execution case and that the sale had taken place with full knowledge of the plaintiffs. Consequently, the right of redemption had been validly extinguished by that sale and the plaintiffs had no right to claim redemption,
4. Both the Courts below have concurrently found that the fraud alleged by the plaintiffs had been proved. They have also found that the sale held in the previous execution case was without jurisdiction because notice under Order 21, Rule 22, Code of Civil Procedure, had not been served on the plaintiffs, who were judgment-debtors. As regards the question of adjustment, that point does not appear to have been raised in the Courts below. It has been raised here for the first time. The Courts below also held that the right of redemption had not been extinguished by the sale because, it being a fraudulent sale, under Section 90 of the Indian Trusts Act and on the principle underlying it the defendants could not take advantage of this sale, because thereby they could not be allowed to take advantage of their position as mortgagees; consequently, the right of redemption subsisted and the plaintiffs were entitled to redeem the mortgage.
4a. In the appeal, the same points have been raised before me which were raised in the Court of appeal below, but it has been conceded that the real point to be considered was whether the defendants could be stopped from taking advantage of the auction-sale because of Section 90 of the Indian Trusts Act. As to the first point that the sale was without jurisdiction, I think the findings of the Courts below are correct because in several cases of this Court it has been held that when a sale is held without serving a notice under Order 21, Rule 22, on the judgment-debtor, the sale is void. See the cases of Durga Singh v. Sugambar Singh, 22 Fat LT 520 : (AIR 1641 Pat 481); Ajab Lal Dubey v. Hari Charan Tewari, AIR 1945 Pat 1 and Ramdhari Singh v. Saligram Singh, 1954 BLJR 288: (AIR 1954 Pat 429). In all these cases this point came up for consideration in some form or the other and it has been consistently held that the sale held in the absence of the service of notice under Order 21 Rule 22 Code of Civil Procedure was without jurisdiction. Learned counsel for the appellants quoted two rulings of this Court reported in Sukhdeo Gond v. Brahmadeo Tewari, 1957 BLJR 45 : (AIR 1957 Pat 431); Ram Saran Sah v. Deonandan Singh, 1957 BLJR 242: (AIR 1957 Pat 433) but those cases were decided after the amendment of Order 21, Rule 22 of the Code of Civil Procedure in 1947, whereby it has been provided that if a notice under Order 21, Rule 22, has not been served the sale will not be without jurisdiction; but that does not affect the position in the present case because here the sale had taken place and the execution case had proceeded before 1947.
5. As regards the argument based on the question of adjustment, I think, there is no force in it, because here the adjustment of the amount of the decree by the alleged agreement between the plaintiffs and defendants, whereby the latter had undertaken not to execute the decree, is not sought to be recorded by the plaintiffs. They do not rely noon it. Consequently, the bar under Order 21, Rule 2(3). does not arise. Here, the main relief of the plaintiffs is that the sale held in execution of the decree has not brought about any change so far as their right to redeem the mortgage is concerned. This argument of the learned counsel of the appellants on the score of the bar of adjustment, under Order 21, Rule 2 (3), Code of Civil Procedure, is overruled.
6. Coming to the main point, I think that the Courts below have correctly held that the right of redemption could not be held to have been extinguished by the purchase of the said right in the execution of the decree by the defendants.
7. The facts found in this case arc that there had been an agreement between the parties whereby the defendants had agreed not to execute the decree any more, but in breach of this agreement and the trust which the plaintiffs had reposed in the defendants the latter bad proceeded with the execution of the decree with a view to extinguish the right of the redemption and actually by suppressing the processes they had succeeded in getting the properties sold and had purchased the same themselves in the court-sale. There can be no doubt that in such circumstances the provisions of Section 90 of the Indian Trusts Act clearly apply. Section 90 is in the following terms:
“Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested the advantage so gained, but subject to payment by such persons of their due shares of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.
ILLUSTRATIONS.
(a) A, the tenant for life of leasehold property, renews the lease in his own name and for his own benefit. A holds the renewed lease for the benefit of all those interested in the old lease.
(b) A village belongs to a Hindu family. A, one of its members, pays nazarana to Government and thereby procures his name to be entered as the inamdar of the village. A holds the village for the benefit of himself and the other members.
(c) A mortgages land to B, who enters into possession. B allows the Government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the amount due on the mortgage and of the expenses properly incurred as mortgagee, B holds the land for the benefit of A.”
In the ease of Bishunath Tewari v. Mst. Mirchi, (S) AIR 1955 Pat 66, this section was applied to a case where the landlord had sued for rent of the mortgaged property which was mortgaged with the defendants’ ancestor, who was liable to pay the rent, The mortgagee deposited the decretal amount. Thereafter the sons of the mortgagee instituted a money suit against the mortgagor for excess rent which he had paid in satisfaction of the rent decree. He obtained an ex parte money decree and purchased the equity of redemption of the mortgaged land.
It was found that the decree had been fraudulently obtained and that the sale in the execution of that decree also was a result of fraud. It was observed that Section 90 of the Indian Trusts Act applied. This section is based on the equitable consideration that no person who is in a fiduciary relationship with another was entitled to take advantage of his position and thereby cause injury to a person who has beneficial interest in the property. On the facts of this instant case, there can be no doubt that the defendants as mortgagees in extinguishing the right of redemption of the plaintiffs had perpetrated a fraud in that the equity of redemption was sold in execution of their own decree against the express agreement between the parties, whereby the defendants had agreed not to execute the decree and had thus put the plaintiffs off their guard.
There is another case of this Court reported in Ram Rup Singh v. Jang Bahadur Singh, AIR 1951 Pat 566 in which the plaintiffs had executed a usufructuary mortgage in favour of the defendants leaving the consideration money with the mortgagees to satisfy a rent decree against the property which was mortgaged by that deed, but the mortgagees did not pay the decree and when the property was sold in execution of the decree they themselves purchased it. It was held that the mortgagees were trustees of the plaintiffs-mortgagors in respect of the decretal amount and having failed in their duty to save the property from sale, they could not resist the claim by the plaintiffs to redeem the mortgage on the ground that the equity of redemption had been purchased by them in execution of the rent decree.
In a very early case of Nawab Sidhee Nazir Ali Khan v. Ojoodhyaram Khan, 10 Moo Ind App 540 (PC) the principles governing such cases have been laid down by their Lordships of the Judicial Committee. That was a case in which the purchaser of the mortgagee’s interest had allowed the mortgaged property to fall into arrears of Government revenue and he had entered into an agreement with another person whereby it was arranged that that person should bid for the estate when sold by auction, and it was subsequently assigned to other persons who were benamidars of the persons who had purchased the mortgagee’s interest. The mortgagor filed a suit for redemption of the mortgaged estate.
It was held that although the mortgaged property had been sold in arrears of Government revenue the sale would not have a greater effect than that of a private sale and would be impressed with a trust in favour of the mortgagor, and the right of redemption would not be taken to have been extinguished. Their Lordships’ observation at one place would show that fraudulent purchase in an auction sale would not defeat the mortgagor’s equity of redemption. It is based on the doctrine that a man cannot take advantage of his wrong. This case was decided by the Privy Council on the 17th March, 1866 and the Indian Trusts Act was passed in 1882.
8. It will appear from one of the illustrations to Section 90 of the Indian Trusts Act, quoted above, that if a mortgagee gains any advantage by availing himself of the position as such in derogation of the rights of the other persons interested in the property, he would hold that property for the benefit of those persons who are so interested. In other words, in this case it is clear, having regard to the facts found, that the defendants taking advantage of tbeir position as mortgagees, and betraying the trust reposed in them by virtue of the agreement, whereby they had undertaken not to execute the decree, had purchased the eouity of redemption with a view to injure the right of the mortgagors-plaintiffs which they had in this property. They must, therefore, hold that advantage for the plaintiffs, which means that they cannot resist the claim of the plaintiffs to redeem the mortgage,
9. It is urged by the learned counsel for the respondents that the cases upon which reliance has been placed, and which I have discussed above, arc cases in which the mortgagees in some way or other were concerned with the decrees in which they had purchased the equity of redemption subsequently in the execution of those decrees. Here, the mortgagees, namely, the defendants had purchased the equity of redemption in a decree which had nothing to do with the mortgaged properties, but was an independent money decree. Learned Counsel for the appellants put forward an example and said that if the facts were that a third person had this money decree against the plaintiffs and in execution of that decree had committed a fraud of the nature proved in this case, and the equity of redemption had been purchased by the present mortgagees, section 90 of the Indian Trusts Act could not have been applied and the plaintiffs could not have claimed that they had subsisting right of redemption. To some extent, this argument of the learned counsel for the appellants may be correct on the supposed facts, but in the supposed case if it were further found that the mortgagees had been parties to the fraud practised by that third person, undoubtedly, I think, in that case, Section 90 of the Indian Trusts Act would have applied and the mortgagees could not have been allowed to say that because they had purchased the equity of redemption in a decree of another person they were not bound to hold the advantage, which they had gained by the purchase, for the mortgagors. Moreover, it may also be stated that Section 90 of the Indian Trusts Act is not exhaustive. Even if the section were not to be applicable, the general equitable principle remains that if a person who is in fiduciary relationship with another has gained an advantage of the detriment of that person who is interested in the property he shall not be entitled to hold the benefit for himself. No man can taken advantage of his own wrong.
10. It must be remembered that the clear fact found in this case is that the defendants had deliberately broken the obligation by which they had agreed not to execute the decree and, as a necessary result of that breach, the right of redemption was sold to and purchased by them. It must be taken that the defendants had intended the natural and probable consequences of their act in proceeding with the execution case in spite of the agreement to the contrary and after having suppressed the processes they had purchased the right of redemption themselves. All these facts clearly place the defendants within the mischief of this rule and they cannot resist the claim of the plaintiffs for redemption of the mortgage.
11. There is no merit in this appeal. It is dismissed with costs.