1. The plaintiff’s case is that he is entitled to certain lands under a mortgage decree, obtained by him in O.S. No. 448 of 1892. The lands were subject to a mortgage in favour of the defendant. In execution of his decree, the plaintiff brought certain lands to sale and purchased them subject to the defendant’s mortgage. The sale was proclaimed on November 27th, 1895. The plaintiff himself became the purchaser at the Court auction and a sale certificate of the lands purchased was granted to him in January, 1896. In August, 1897, the plaintiff deposited in Court the amount of the defendant’s mortgage and asked for the delivery of the lands. The defendant declined to give delivery upon the ground that certain items of the property, which the plaintiff claimed upon the ground that they were included in the sale certificate, were not included in the mortgage on which the plaintiff had sued, or in the decree which he had obtained. In 1900, the plaintiff instituted the present suit for possession of the lands described in the sale certificate. The Munsif held that the lands in dispute were not included in the mortgage to the plaintiff or the decree in the suit thereon, and as regards these lands he gave judgment for the defendant. The District Judge reversed the decision of the Munsif upon the ground, that the sale certificate was conclusive and that the sale to the plaintiff could not be impeached except upon the ground of fraud which had not been proved The District Judge recorded no finding as to whether the lands in dispute were in fact included in the mortgage and the decree, and on the case coming before this Court on second appeal, it was remitted to the District Court for a finding on the point. The District Judge now states that he is unable to record a finding on the question. It is to be regretted that the District judge has not seen his way to record a finding upon the question remitted to him. As has been stated, the Munsif held that the items of land in dispute were not comprised in the mortgage bond, and the Judge, although he professes himself unable to return a finding as to this, points out that, at any rate, a considerable portion of the lands, which, according to the plaintiff’s case, were comprised in the words other samudayam lands were not regarded as samudayam lands at the date of the decree. Having repaid to the somewhat unusual course adopted by the District Judge, the only course open to us is to deal with the case upon the footing that the lands in dispute were not included in mortgage or decree.
2. As has been stated, the District Judge held that the sale to the plaintiff could not be impeached except upon the ground of fraud. This is not so–at any rate, in a case like the present, where the decree-holder is himself the purchaser. Mr. Sivaswami Aiyar, on behalf of the plaintiff, did not seek to support the judgment of the Court below upon the ground that the sale was unimpeachable except upon the ground of fraud. His argument was: (1) that the matter was res judicata by virtue of Section 13 of C.P.C., and (2) that having regard to the provisions of Section 244 of the Code, it was not open to the defendant to raise the defence in the present suit that certain items of the property mentioned in the sale certificate were: not in fact comprised in the mortgage or the decree. As regards Section 13, the question whether the items in question were, in fact, comprised in the mortgage and the decree was not in issue in O.S. No. 448 of 1892; there was no adjudication upon the question, and it was not a matter which could have been made a ground of defence in that suit. As regards Section 244, the effect of the section, as it seems to us, is to debar a plaintiff from bringing a suit for the determination of a question relating to the execution, discharge, or satisfaction of a decree, which has arisen between himself and the defendant as parties to the suit, in which the decree was obtained, but not to debar a defendant from setting up, by way of defence, a matter which relates to the execution, discharge or satisfaction of a decree obtained in a suit to which he and the plaintiff were parties. Mr. Sivaswami Aiyar has not been able to call our attention to any authority in support of his contention. There is clear authority the other way. In the case reported in Bhiram Ali Shaik Shikdar v. Gopi Kanth Shah 24. C, 355, the Judges observe: “All that Section 244 enacts is that certain questions therein specified shall be determined by the order of the Court executing the decree and not by separate suit; and granting that the question that the defendant now raises was one that came within the scope of Section 244, still it does not follow that a defendant is precluded from raising that question by the provisions of Section 244, when the question was not raised in the execution proceedings and has not been determined. The view that we take of Section 244 is that it bars a suit brought for the determination of certain questions, but does not bar the trial of any issue involved in those questions, if the issue is raised at the instance of a defendant in a suit brought against him.”
3. The decision was followed in a case reported in Nil Kamal Mukerjee v. Jahnabai Chowdhurani 26 C. 946. In that suit the plaintiff brought a suit to recover land, obtained a decree, and in execution took possession of certain plots of land not comprised in the decree, whilst he omitted to take possession of certain other plots which were comprised in the decree. The defendant dispossessed him of the whole of the land and the plaintiff brought a suit to recover it. It was held that Section 244 did not preclude the defendant from setting up the defence that the land claimed was not comprised in the decree. The only difference between the facts of this case and the case before us, so far as this point of law is concerned, is that in the Calcutta case the plaintiff had got possession of the lands in dispute though he was afterwards dispossessed by the defendant, whilst in the case before us the defendant has been in possession all along. If the defendant is to be precluded from raising the defence which he has set up in the present suit, the only course open to him would be to apply in O.S. No. 448 of 1892 for the setting aside of the sale and then apply for a stay of proceedings in the present suit pending the disposal of his application in the other suit. This would load to multiplicity of proceedings and defeat the object which the Legislature had in view in enacting Section 244. We agree with the decisions of the Calcutta Court to which reference has been made. The decree of the District Court must be set aside as regards items Nos. 7 to 11 and as regards the District Judge’s direction to the Munsif to take evidence and record a finding on the 3rd issue.
4. We allow the appeal with costs, here and in the Court below, and restore the decree of the Munsif as regards items Nos. 7 to 11.