G.N Prasad, J.:— This is a second appeal by the plaintiffs who won in the trial court but have lost in the lower appellate court. The dispute relates to 19½ kathas of land forming the southern portion of R.S plot No. 1920, appertaining to Khata No. 519, in village Basant Jahanabad, Police Station Lalganj, district Muzaffarpur. The total area of plot no. 1920 is 1 bigha 19½ kathas and it formerly belonged to Bishwanath Tewari and others (defendants second party).

2. In 1952, Moti Chaudhary, the predecessor-in-interest of defendants third party, instituted a money suit (Money Suit No. 4 of 1952) against the defendants second party and obtained a decree for Rs. 1682/- and odd. After Moti Chaudhary's death, the defendants third party put the decree into execution in Execution Case No. 139 of 1954, and on January 11, 1955, they auction purchased the lands described in Schedule No. 2 of the plaint and got the sale certificate from Court on April 9, 1955. They did not, however, take steps for delivery of possession, and on April 4, 1957, they sold away their interest in the auction purchased lands to the plaintiffs under a sale deed (Ext. 1). In other words, they authorised the plaintiffs to take delivery of possession over the auction purchased lands. After obtaining the sale deed (Ext. 1), the plaintiffs proceeded with the execution case aforesaid and on June 20, 1957 they applied for delivery of possession. On September 14, 1957, when the Court peon went to effect the delivery of possession, resistance was offered by the defendants first party. The result was that possession was delivered to the plaintiffs over other lands but not over the disputed portion of plot no. 1920. Thereupon the plaintiffs instituted a miscellaneous case (Miscellaneous case No. 198 of 1957) under Order XXI Rule 97, Code of Civil Procedure. This miscellaneous case was decided in favour of the plaintiffs by the execution court, but in Civil Revision no. 508 of 1969 decided by Untwalia, J. On April 12, 1960, the decision of the Executing Court was set aside and the miscellaneous case was dismissed as barred by limitation, vide Ext. E/2. Thereupon, the plaintiffs instituted the present suit on January 7, 1961, seeking inter alia, a declaration of their title over the disputed portion of plot no. 1920 and an adjudication that the defendants first party have no right to obstruct their claim to delivery of possession over the same.

3. The suit was resisted by the defendants first party on various pleas. Their case is that they had obtained a decree for costs against the defendants second party and put the same into execution in Execution Case no. 316 of 1955. On August 7, 1956 they bad auction-purchased 12 kathas forming the south-western portion of plot no. 1920 over which possession was delivered to them through Court on February 23, 1957. They challenged the auction sale held in favour of defendants third party on January 11, 1955, as illegal and void, and the sale deed (Ext. 1) executed by them in favour of the plaintiffs on April 4, 1957 as a fictitious transaction, without consideration and ineffective. They, therefore, pleaded that the plaintiffs were not entitled to any relief in the suit.

4. As already stated, the trial court accepted the plaintiffs' case, but the lower appellate court has taken a contrary view. In substance, the lower appellate court has held that the defendants third party had neither acquired any title over the suit land by virtue of the execution sale held in their favour on January 11, 1955, nor conveyed any title therein to the plaintiffs under the sale deed (Ext. 1) executed on April 4, 1957.

5. The lower appellate court has given two grounds for holding that no title had passed to defendants third party under the execution sale held on January 11, 1955. It has referred to the order sheet of Execution Case No. 139 of 1954-(Ext 3) which shows that the original date fixed for the auction sale was January 10, 1955, and on that date the lands advertised for sale had been sold in favour of the decree-holders for Rs. 2,000/- but the decree-holders got the sale set aside on the same day and obtained an order for fresh sale on the following day after releasing 1 katha of land out of the lands which had been advertised for sale. Accordingly, the sale was again held on January 11, 1955 in favour of the decree-holders. Dealing with this matter, the trial court had held that the resale on January 11, 1955 was held under Rule 84 of Order XXI of the Code of Civil Procedure, and as such it was not necessary to issue any fresh sale proclamation after the sale which was held on January 10, 1955 had been set aside. But the lower appellate court has taken the view that in the circumstances of the case a fresh-re-sale could only have been done in accordance with Rule 86 so that a fresh sale proclamation had become necessary as required by Rule 87, and since such a course was not adopted, the sale held on January 11, 1955, was void and illegal. The correctness of the view thus taken by the lower appellate court having been challenged before me on behalf of the appellants, it is necessary to refer to Rules 84, 86 and 87. Rule 84 provides that as soon as a sale is held, the purchaser must immediately deposit in court a sum equivalent to twenty-five percent of the purchase money, and that in default of such deposit “the property shall forthwith be re-sold.” It further provides that where the decree-holder is the purchaser and is entitled to set off the purchase-money under Rule 72, the court may dispense with the requirement of this rule. As against this, Rule 86 deals wit a situation where the full amount of the purchase-money is not paid by the purchaser into court within fifteen days from the date of the sale as enjoined by Rule 85, and it provides that in default of such deposit of the balance of the full purchase-money, the deposit of the twenty five per cent of the amount made under Rule 84 shall be forfeited, unless the court directs otherwise. Rule 87 also deals with a situation where there has been default in making the deposit of the full purchase-money within fifteen days mentioned in Rule 85, and it reads thus:—

“Every re-sale of immovable property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.”

6. In the instant case, as the order-sheet Ext. 3 shows, Rule 85 was not attracted, inasmuch as the sale held on January 10, 1955, had been set aside on the same day. Quite clearly, therefore, there could have been no question of payment of the full amount of the purchase-money within fifteen days of the date of the sale as enjoined by Rule 85, and if Rule 85 had not come into play, there could be no question of the application of Rules 86 and 87. The order of January 10, 1955, as contained in Ext. 3, was in the following terms:

“Sale held. Property sold to D.Hr for Rs. 2000/-. Petition for set off and poundage fee not filed. D.Hr files a petition stating that he has got no money to deposit the excess sale purchase and so he prays that one katha of land be released from plot no. 1923 under Khata 498 and then the property may be put to sale for decree money.

Sale dated 10.1.54 is set aside.

The prayer of the D.Hr that 1 cottah of land out of plot no. 1923 of Khata number 498 be released is allowed.

The sale will therefore take place after leaving 2 cottah of land out of plot no. 1923 of Khata number 498.

Put up the rest of the property under sale for sale at 1 p.m on 11.1.55”

7. Then follows the order of January 11, 1955, which reads:

“Sale held. Property sold to D.Hr for Rs. 1951/1/6.

“Petition of set off and poundage fee filed. Let set off be allowed. To 11.2.55 for confirmation of sale.”

8. It was quite clearly a case to which Rule 84 had been attracted on the ground that the decree-holder, who had been declared to be the purchaser, had failed to deposit twenty-five per cent of the purchase money immediately after the sale was held and had also not applied for set off of the purchase money under Rule 72 so as to enable the Court Rule 84. Thus the only course open to the executing court was to direct that the property that had been advertised for sale “shall forthwith be re-sold”. In fact, a direction to this effect was made on January 10, 1955 itself with this difference that one cottah out of plot no. 1923, which was one of the items of property included in the sale proclamation, had been released from sale. In my opinion, it was not necessary for the executing court to order the issue of a fresh sale proclamation after deleting from the original sale proclamation 1 cottah of land out of Plot No. 1923, because the property which was sold on January 11, 1955 had already been included in the sale proclamation in pursuance of which the sale was held on January 10, 1955.

9. Mr. Chatterji appearing on behalf of defendant-respondent first party contends that the property to be sold within the meaning of Order XXI, Rule 66(2)(a) was not merely the property which was sold on January 11, 1955, but also one cottah of plot no. 1923 which was ordered to be released from sale on January 10, 1955, Mr. Chatterji, therefore, contends that the property which was sold on January 11, 1955, was not “the property to be sold” in accordance with the sale proclamation. There might have been force in this contention of Mr. Chatterji if on January 11, 1955, any new item of property would have been put to sale which had not been included in the sale proclamation. But where, say, four items of property are advertised for sale and only three of them are actually put to sale, it is impossible to hold that the three items which have been sold do not answer the description of “the property to be sold” within the meaning of Rule 66(2)(a) of Order XXI. I am, therefore, unable to accept the contention of Mr. Chatterji and I hold that the lower appellate court was in error in thinking that the sale held on January 11, 1955, was illegal and void on the ground that no fresh sale proclamation had been issued after the sale which was held on January 10, 1955 had been set aside under the circumstances mentioned in the order sheet (Ext. 3). Thus, the first ground given by the lower appellate court for holding the execution sale of January 11, 1955 as void and illegal cannot be sustained.

10. The lower appellate court has, however, given another ground for holding the execution sale of January 11, 1955, as void. Upon the materials on the record, the lower appellate court has found that two of the judgment-debtors (defendants second party), namely, Raghunath Tiwary and Uma Nath Tiwary (defendants nos. 6 and 7 in the present action) were minors at the relevant time and they were not properly represented in the Execution Case No. 139 of 1954 and, therefore, the sale, so far as defendants 6 and 7 were concerned, was a nullity. This point had also been raised in the Trial Court, but the Trial Court negatived the plea put forward on behalf of the contesting defendants on the ground that no objection to the execution sale on this score had been raised in the written statement of defendant no. 1. The trial court further pointed out that the plaintiffs had objected to the admission of evidence which the contesting defendants had adduced in support of this ground. In Paragraph 14 of its judgment, the Trial Court observed as follows:

“In this circumstance the evidence regarding the minority should be thrown away and should not be looked into. When this aspect is absent in the pleading so even an evidence is adduced Court will not take notice of the evidence.

The Trial Court had, accordingly, held that the point was not available to the contesting defendants. But the lower appellate court has interpreted Paragraphs 19 and 22 of the written statement of defendant no. 1, as containing a plea of the minority of defendants 6 and 7. The lower appellate court has further held that the Trial Court having admitted the evidence adduced by the defendant first party on the question of the minority of defendants 6 and 7, was not justified in ignoring the same from consideration. Learned counsel for the appellants has taken me through Paragraphs 19 and 22 of the written statement and it does appear that there is no specific plea therein to the effect that defendants 6 and 7 were minors or that they were not properly represented in the execution case. No specific issue on the point was also framed at the trial. But the contesting defendants did adduce evidence in order to show that defendants 6 and 7 were minors and that they had not been represented through any guardian-ad-litem in the execution case. It is only in a most indirect manner that Paragraphs 19 and 22 of the written statement can be construed as containing a suggestion that defendants 6 and 7 were minors at the time of the execution sale. But the fact remains that the evidence on the point was gone into in spite of the objection raised on behalf of the plaintiffs. The normal rule, no doubt, is that no amount of evidence can be looked into in regard to a matter for which there is no foundation in the pleadings. But the law on the subject has been recently clarified by their Lordships of the Supreme Court in (1) Bhagwati Prasad v. Chandrmaul (A.I.R 1966 Supreme Court 735, at page 738) in the following terms:—

“The general rule no doubt is that the relief should be founded in pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though directly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice and in doing justice to one party, the Court cannot do injustice to another.”

11. In view of the above observations of their Lordships of the Supreme Court, the real question which falls to be determined is whether or not the plaintiffs knew that the contesting defendants were relying upon the minority of defendants 6 and 7 for the purpose of assailing the title of the plaintiffs or their predecessors-in-interest. If the plaintiffs had sufficient notice of the stand which the contesting defendants subsequently took by adducing evidence, as to the minority of defendants 6 and 7 at the time of the execution sale in January, 1955, then it must be held that the plaintiffs were not taken by surprise since they had ample opportunity of leading evidence in rebuttal of the case put forward by the contesting defendants. In paragraph 17 of its judgment, the lower appellate court has pointed out that the deposing plaintiff (P.W 5) had admitted in his cross-examination that defendants 6 and 7 were minors at the time when the money suit of 1952 was filed against them, and when it was suggested to him that they had continued to be minors even at the time of the auction sale in Execution Case No. 139 of 1954, he was unable to deny that fact and gave an evasive answer by saying that he did not know about it. The suggestions made to P.W 5 in course of his cross-examination show that the plaintiffs had sufficient notice of the case which the defendants were going to place in court regarding the minority of defendants 6 and 7. In other words, the plaintiffs had ample opportunity of leading evidence to the contrary. Having failed to lead any evidence that defendants 6 and 7 were properly represented in the execution case, the plaintiffs could not legitimately object to the consideration of the evidence adduced by the contesting defendants to show that defendants 6 and 7 were minors and that they were not properly represented in the execution case. I, therefore, hold that the view taken by the lower appel late court as to the invalidity of the execution sale held on January 11, 1955 on the ground of minority and non-representation of defendants 6 and 7 does not suffer from any infirmity. I am, therefore, satisfied that this second ground for holding the execution sale of January 11, 1955, as void as against defendants 6 and 7 is well-founded. This does not, however, apply to the sale of the interest of the other judgment-debtor Bishwanath Tiwary (defendant no. 5).

12. I now pass on to consider whether the lower appellate court is right in holding that no title had passed to the plaintiffs by virtue of the sale deed Ext. 1 executed in their favour on April 4, 1957. This transaction was challenged by the defendants first party as illegal, fraudulent and wholly without consideration, and upon a consideration of the relevant materials on record, the lower appellate court has held that the sale deed Ext. 1 was a fictitious document and without consideration and that it did not convey any title to the plaintiffs. The view of the trial court was that defendant no. 1 being a stranger the transaction was not competent to challenge the passing of consideration or the recitals of necessity contained in the sale deed Ext. 1. The executants of the sale deed could have challenged the passing of consideration, but although they were parties to the suit, they had not challenged the passing of consideration under Ext. 1. The trial court summed up its conclusion on the point in paragraph 18 of its judgment in these terms:

“Thus the defendant no. 1 has challenged the passing of consideration and the necessity mentioned therein of Kebala dated 4.4.1957 But the defendant no. 1 is not legally entitled to challenge the passing of consideration and necessity mentioned in sale deed. The executant can challenge the passing of consideration. The executant of the sale deed are also party to the suit, but they have not challenged the passing of the consideration. The executants had rights and little over the land and they have transferred it to plaintiff by a registered sale deed. In this circumstance it is not open to defendant no. 1 who is the mere stranger, to challenge legally the passing of consideration and necessity mentioned in Ext. 1”.

13. The lower appellate court is of the view that the defendants first party are not precluded from challenging the passing of consideration and the recitals of necessity contained in the sale deed Ext. 1, which it has found to be fictitious and not designed to operate as a genuine transaction in order to effect a transfer of title. Learned counsel for the appellants has urged that the view taken by the lower appellate court is not sound and has referred in this connection to the Bench decision of this Court in (2) Musammat Akli v. Musammat Daho* (9 Patna Law Times 302), where it was held that it is well established that the passing of consideration for a transfer cannot be challenged except by the parties to the transaction or by those who claim through those parties. There the dispute was in respect of a house belonging to one Chand Sao, who left behind a widow named Musammat Bifia. After his death, Bifia executed a sale deed in respect of the house in favour of the plaintiff for a consideration of Rs. 450/-. But the plaintiff was not put in possession of the house as it was found that it was actually in possession of the sister of Chand Sao and she refused to make over the possession of it to the plaintiff. Accordingly the plaintiff instituted a suit for recovery of possession of the house on the basis of the sale deed which was executed in her favour by Musammat Bifia. One of the grounds upon which the sister of Chand Sao, who was defendant no. 1 in the suit, had resisted the plaintiff's title was that the sale deed which Musammat Bifia had executed in favour of the plaintiff was without consideration. It was held by this Court that such a plea was not available to the defendant until she established “some sort of title in her as the successor-in-interest of Chand Sao who is undoubtedly the predecessor-in-interest of Musammat Bifia.” It will be noticed that in the reported case the sale deed in favour of the plaintiff was not challenged, as Ext. 1 has been challenged in the present case, as a wholly fictitious document or as a document which was not designed to operate as a real deed in order to effect a transfer of title. Therefore, in my opinion, the principle laid down in 9 Patna Law Times 308 can be of no avail in the present case which is one of an entirely fictitious transaction. Where a sale deed is challenged as a fictitious document which was never designed to operate as a genuine sale deed in order to effect the transfer of title, the principles which are applicable are those laid down in two Bench decisions of the Calcutta High Court. In (3) Kamini Kumar Deb v. Durga Charan Nag (A.I.R 1923 Calcutta 521), the Subordinate Judge had found that there was no passing of consideration under a conveyance dated the January 18, 1917, and that the transaction was fictitious and that title was not intended to pass. Under those circumstances it was held by Sir Asuthosh Mookerjee, with whom Rankin, J. (as he then was) agreed, that the principle enunciated by the Judicial Committee in Lal Achalram v. Raja Kazim Hossain (32 Indian Appeals 113) to the effect that a stranger to a deed, which is intended to be real and operative between the parties thereto, cannot dispute the payment or non-payment of consideration or its adequacy or inadequacy, has no bearing in a case where a deed is challenged as fictitious, never designed to operate as a real deed or to effect a transfer of the title. The same view was taken by B.K Mukherjee, J. (as he then was) sitting with Blank, J. (4) in Sardindu Mukherjee v. Kunja Kamini Roy (A.I.R 1942 Calcutta 514).

14. In the instant case, the finding of the lower appellate court as the final Court of fact is clear and categorical that the sale deed Ext. 1 was fictitious and not designed to convey any title to the plaintiffs and, therefore, the principles of the two Calcutta decisions referred to above must apply to the facts and the circumstances of the present case. I, therefore, agree with the lower appellate court that the defendants first party are not debarred from challenging the passing of consideration under the sale deed Ext. 1.

15. From the foregoing discussions, the conclusion must be that the title of the defendants first party over the 12 kathas portion of plot no. 1920 from the south-west of that plot must prevail over the claim which the plaintiffs have made in the present action, and to that extent, therefore, the suit must fail. But that is not the only portion of plot no. 1920 which is the subject matter of the present suit. The present suit relates to 19½ kathas forming the southern portion of plot no. 1920 of which, as already stated, the total area is 1 bigha 19½ kathas. Since neither defendants second party nor defendants third party have come forward to challenge the plaintiffs' case, I see no reason why their suit cannot Succeed with regard to such portion of the suit land which is not covered by the auction sale dated the 7th August 1956 held in favour of the defendants first party in Execution Case No. 316 of the 1955. To this extent, therefore, the plaintiffs' clime must succeed. In other words, the plaintiffs will be entitled to apply for delivery of possession over such portion of the suit land which falls outside the portion of 12 kathas covered by the execution sale held in favour of the defendants first party on August 7, 1956, in Execution Case No. 316 of 1955.

16. The appeal is, therefore allowed in part, as indicated above. In the circumstances of the case, however, there will be no order as to costs.

Appeal allowed