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Judgment
Barnes Peacock, J. 1. In this case the Plaintiff sued several Defendants, claiming to set aside certain auction sales which had taken place under a decree of the Subordinate Judge of Moradabad, and for an order that the Plaintiffs be put into absolute possession of the properties which were sold, and are mentioned in the schedule to the plaint. In the schedule the properties and the purchasers thereof are separately described, and the action may be treated not as a joint action as regards all the property, but as an action against the several Defendants as regards the properties of which they were severally purchasers. 2. Some of the Defendants were the decree-holders, and some were persons who came in under them; but all the Defendants who are in that position may for the purpose of this judgment be classed under the head of the decree-holders. Others of the Defendants were not decree-holders, but merely purchasers under the execution, and strangers to the decree upon which the execution issued. The circumstances are peculiar. The Plaintiffs in the suit in which the execution was issued sued the present Appellant in the Court of the Subordinate Judge of Moradabad to recover certain landed property situate in that district, and also mesne profits in respect of that property. They also sued for a large amount in respect of promissory notes which were alleged to be due from the present Appellant to the Plaintiffs in that suit, and a large amount alleged to be due from the Appellant as dower to their mother, whom they represented. The Defendant in that suit - the present Appellant - objected that there was no jurisdiction on the part of the Subordinate Judge to try the suit, inasmuch as he, the then Defendant, was not a resident in the district of Moradabad, but a resident in foreign territory, namely, Jaipur. But the Subordinate Judge decided that he had jurisdiction, and gave a decree against him, not only for the lands which were situate in the district, and the mesne profits of those lands, but also for the amount which was claimed to be due on the promissory notes, and on account of the dower.
That case was appealed to the High Court, but that Court dismissed the appeal upon the ground that the case was not appealable. An appeal was then preferred to Her Majesty in Council against that decision of the High Court, and Her Majesty in Council reversed the decision of the High Court, and remanded the case to be tried upon the merits. The High Court, when they tried the case upon the merits, reversed the decision of the Subordinate Judge as regards the amount decreed by the Subordinate Judge, in respect of the dower, and of the promissory notes, but affirmed his judgment as to the land which was situate within his jurisdiction, and the mesne profits in respect of that land. But before the judgment of the Privy Council, and before the decree of the High Court, which reversed a part of the original judgment of the Subordinate Judge, the Plaintiffs in that suit, who are now some of the Defendants, executed their decree, and several sales took place under that execution. Under the first sale a certain amount was realised which would have been sufficient to cover the amount finally allowed by the decree of the High Court upon appeal. A second sale took place under which one of the Defendants, Ashgar Ali, purchased bond fide, he not being a party to the original decree. 3. The Plaintiff brought his suit on the 22nd of February, 1881, not only against the decree-holders who had purchased under the execution, but as against the bond fide purchaser who was no party to the decree. 4. Pending the suit certain other Defendants were added. The entry on the record is as follows : "According to the order dated the 17th of January, 1882, Har Sarup, Parshadi Lal and Jiwa Ram, auction purchasers, were joined as Defendants." The three Defendants who were then joined were no parties to the decree, so that there are two sets of Defendants in the suit : the decree-holders who purchased under their own execution; Ashgar Ali, who purchased a portion of the property of the Plaintiff, being a bond fide purchaser and a stranger to the decree; and the three other Defendants, who were alleged to be auction purchasers under the decree, and who were no parties to it. 5. The Plaintiff claimed that "the auction sales of the disputed property detailed in the plaint, held on the 20th of November, 1874, 20th of November, 1875, and 15th of November, 1876, be declared null and void, and the sale deed in favour of Shaukat Hosain Khan, dated the 2nd of November, 1880, so far as it appertains to the Plaintiff''s claim, be set aside." Thus he claimed to set aside all the auction sales, not only as against the decree-holders who had purchased, but as against bond fide purchasers who were no parties to the decree. Secondly, he claimed that "Plaintiff be put in absolute possession of the under-mentioned property of the value of Rs. 21,450 after dispossession of the Defendants." 6. Amongst other issues, one was whether the auction sale and the purchase having been made bond fide, could be invalidated or set aside by the modification of the decree, and whether limitation law barred the claim. 7. It appears to their Lordships that there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bond fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order. 8. A great distinction has been made between the case of bond fide purchasers who are no parties to a decree at a sale under execution and the decree-holders themselves. in Bacon''s Abridgment, tit. "Error" it is laid down, citing old authorities, that "If a man recovers damages, and hath execution by fieri facias, and upon the fieri facias the sheriff sells to a stranger a term for years, and after the judgment is reversed, the party shall be restored only to the money for which the term was sold, and not to the term itself, because the sheriff had sold it by the command of the writ of fieri facias." There are decisions to a similar effect in the High Court at Calcutta. They are collected in a note in Broughton, in his book on the Code of Civil Procedure, 4th Ed., note to Section 246, Act VIII of 1859. So in this case, those bond fide purchasers who were no parties to the decree which was then valid and in force, had nothing to do further than to look to the decree and to the order of sale. 9. The Subordinate Judge held that the Defendants were bound to restore the property; not only the decree-holders who had purchased, but the Defendants who had purchased bond fide, not being parties to the decree. In his judgment he says, "The limitation period of one year has nothing to do with this case. The cause of action having accrued to Plaintiff on the 1st of March, 1880, the date when the decision was modified, and as he instituted the claim on the 22nd of February, 1881, it is on no account considered beyond time." Therefore he held that the suit was not barred, but that the Plaintiff had a right to recover, not only as against the decree-holders, but as against the bond fide purchasers, who were no parties to the decree under which they purchased, and he decreed the Plaintiff''s suit. The Defendant Ashgar Ali and the three added Defendants, none of whom was a party to the decree in execution of which the sales were effected, appealed to the High Court. 10. When the case came before the High Court they reversed that decision. They passed two decrees, one as regards the three Appellants who were the added Defendants, and the other as against Ashgar Ali; but they are both in similar words. They said, "Both appeals must be decreed with costs, and the decision of the Subordinate Judge being reversed, the Plaintiffs claim will stand dismissed." According to the strict grammatical construction of the decrees the Plaintiff''s claim was dismissed, not only as regards the Defendants who had appealed, but as regards the others who had not appealed. The decrees must, however, be construed as applicable only to the Defendants who had appealed and whose appeals were decreed, and not to the Defendants who had not appealed, and who were not before the Court, and had not objected to the decision of the Subordinate Judge. 11. Their Lordships, therefore, will humbly advise Her Majesty that the decrees of the High Court ought to be treated as decrees against the Plaintiff only so far as his suit related to the Defendants who had appealed to the Court; and that being so treated, they ought to be affirmed, and that the decree of the Subordinate Judge should be reversed, so far only as it related to the Plaintiff''s claim against those Defendants. Their Lordships also think that the Appellant must pay the costs of the Respondents in this appeal. 12. Their Lordships wish it to be distinctly understood that in affirming the decrees of the High Court, they treat them merely as decrees in favour of the Defendants who were Appellants to the High Court.