JOGESH CHANDRA ASH Vs. ENTAZ ALI

JUDGEMENT

(1.) The facts necessary to be set out for the purposes of these four appeals are as follows: There were four simple mortgages executed by-one Sheikh Ajahar in favour of one Mahananda Ash, - the first dated - October 1901, the second dated - August 1902 which was in respect of some only of the properties covered by the first mortgage, the third dated - October 1903, which was in respect of the same properties as were covered by the second, mortgage, and the fourth dated - April 1908, which, related to such of the properties as were included in the first mortgage but not in the second or the third. Decrees were obtained in respect of the said four mortgages. In those appeals we are not concerned with the decree on the fourth mortgage, which it may be mentioned, has not yet been put into execution. In execution of the decree on the first mortgage the decree-holder put up the mortgaged properties to sale stating that there was no ether incumbrances thereon, and purchased the said properties on the 13 Juno 1921. On the 21 June, 1921, the judgment-debtors conveyed such of the properties as were covered by the second and the third mortgages to the respondents and with the money obtained by the said sale the decretal debt was satisfied and the sale in favour of the decree-holder was set aside on the 12 July 1921. The decree-holder then applied for execution of his decrees under the second and the third mortgages. The respondents put in objections to the effect that the properties were advertised for sale with a declaration that there was no other encumbrance on them and the respondents purchased them on the faith of that declaration and, therefore, the decree-holder was estopped from setting up the encumbrances and proceeding with the execution of the decrees. The Munsif overruled these objections, but the District Judge on appeal has given effect to them and has dismissed the execution cases. The decree-holder has thereupon preferred these appeals.

(2.) The learned Munsif took the view that a private purchaser from the judgment-debtors of the properties advertised for sale could not with propriety take advantage of the declaration in the sale proclamation and that such a purchaser stood on a different footing from a purchaser at the execution sale. The learned District Judge has dissented from the view taken by the learned Munsif and put it to the test as to whether if the sale had not been set aside, the decree-holder could have sold the self-same properties again in execution of his decrees on his other mortgages. He has held that the sale proclamation contained an express declaration that there was no other encumbrance on the properties, and the respondents bona fide purchased the properties from the judgment-debtors for valuable consideration on the faith of the said declaration. He has applied the principle that if a party having a title to an estate stands by and allows an innocent purchaser to expend money on the estate without giving him notice he would not be permitted in equity to assert that title against such purchaser. He has also relied upon the principle of Pickard V/s. Sears [1887] 6 Ad. & E. 469 that where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things and induces him to act on that belief, so as to alter his own previous position the former is concluded from averring against the latter a different state of things as existing at the same time.

(3.) Now the test applied by the learned Judge is hardly a test at all for the purchase having been made by the decree-holder himself; it does not stand to reason that he would not put the properties to sale in execution of his other decrees; if the purchase was made by a third party the decree-holder would undoubtedly be estopped and this estoppel of which the execution purchaser may avail himself against the decree-holder, is based on the ground that it was the statutory duty of the decree-holder to notify before the sale all liens on the properties inclusive of those held by himself. It may be remarked here that if the sale for some reason or other fell through there would have been no bar to the decree-holder setting up the encumbrances again and putting the properties up to sale subject to those encumbrances in fresh or further execution proceeding relating to the same decree.