JUDGMENT
Charles Sargent, Kt., C.J.
1. The plaintiff in this case seeks to have possession given him of one undivided sixth part of the property in possession of the defendant. The defendant is admittedly the purchaser at an auction sale in 1865 and 1866 in execution of a decree obtained by one Allarakia, to whom plaintiff’s father had executed a mortgage of the property, and he produced an unregistered certificate of sale in proof of his title. Both the Courts below held it to be inadmissible, and passed judgment for the plaintiff. The decision in Padu Malhari v. Rakhmai 10 Bom. H.C. Rep. 435 is conclusive as to the inadmissibility of the certificate. The question, however, whether a purchaser at an auction sale under the Code of Civil Procedure of 1859, who has obtained possession without a certificate of sale, is entitled to retain it, has never, as far as we are aware, been decided in this Court. In Tukaram v. Satvaji I.L.R. 5 Bom. 206 Sir Michael Westropp, C.J., says: “This Court is not to be understood by its present decision as expressing any opinion whether or not a purchaser, who without a certificate of sale has been put into possession, could be lawfully ejected because he has not such a certificate. It was not incumbent on the Court under Act VIII of 1859, Section 264, to put a purchaser into possession until he had his certificate of sale; but if he has been put into possession it has yet to be decided that he would not be entitled to retain it.”
2. In the present case, assuming for the moment that the plaintiff is bound by the decree in execution of which the property was sold, it is only necessary to determine whether the defendant did not acquire a good title against the plaintiff’s father, the mortgagor, on the strength of the sale and the order confirming it, followed by possession. This was decided in favour of the auction purchaser as far back as 1873 by the Calcutta Court in the case of Rajkishan Mookerji v. Radha Madhab 21 W.R. 349 and we are not aware of any decision of this Court running counter to it. How far this ruling will be affected by the language of Section 316 of Act XIV of 1882 remains to be determined. As no distinct issue was raised in the Courts below as to the nature of the debt secured by the mortgage, it will be necessary for the Court, on the evidence recorded and such other evidence as the parties may wish to give, to record a finding on the following issue, viz., whether the debt secured by the mortgage of plaintiff’s father to Allarakia was contracted for a legal and moral purpose, and return the finding to this Court.
