One Kylasam Chetti obtained a decree against Chinna Ibrahim Rowthan on a hypothecation bond, purchased the hypothecated property in execution and assigned his rights under the purchase to the appellant. The appellant instituted Original Suit No. 6 of 1886 in the Court of the District Munsif of Tirumangalam against the present respondent (Chinna Ibrahim's brother) and others for the recovery of the said lands and obtained a decree for possession and mesne profits. The matter ultimately came before the High Court in second appeal, in which it was, among other things, held that the appellant was entitled to recover possession of only three-fourths of the lands and mesne profits in respect of such three-fourths and that the respondent's share of the lands, viz., one fourth, was affected neither by the decree obtained by Kylasam Chetti, nor the execution proceeding thereunder. During the pendency of such second appeal. The appellant attached, other lands of the respondent on account of the mesne profits awarded to him by. The decree then under appeal, caused the same to be sold and became the purchaser thereof for the sum of Rs. 70. The amount of the total mesne profits having been settled to be Rs. 100 and odd.
In the present case the appellant sues for the, recovery of the lands so purchased.
The District Munsif and the Subordinate Judge dismissed the suit on the ground that the decree in execution of which the appellant became the purchaser having been modified in the second appeal. The sale during the pendency of such appeal was not binding on the respondent.
On behalf of the appellant it was urged that though the decree under which the sale in question took place was modified subsequently, yet inasmuch as the purchase was for an amount less than three-fourths of the mesne profits settled as aforesaid. The respondent is absolutely, bound by the sale. No doubt the decree in the second appeal for delivery of the three-fourths of the lands warded to the appellant was, as against all the defendants therein, inclusive of the present respondent; but so far as the mesne profits were concerned. The respondent was not in express terms stated to be a party liable and it does not appear that any, pro cowlings were taken subsequent to the decree in the second appeal, with reference to the ascertainment, so far as the respondent, was concerned, of his liability, if any, in respect of mesne profits, or of the extent thereof. Even assuming that the respondent was, one of the parties responsible for the whole of the mesne profits payable in, respect of the three-fourths of the lands decreed, to the appellant and that the amount thereof was equal to, or exceeded. The price for which the appellant made the, purchase relied on, it is difficult to see, how on principle that would take the appellant's case out of the, scope of the rule laid down by the Judicial Committee, in Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan (1) and the cases following it, which is, to the effect that, though in the case of, third parties purchasing, at execution tales. The subsequent, reversal, or modification of the decree, or order under which the sale took place does not affect their rights, it is otherwise in the case of decree-holders themselves purchasing, and that in their case the purchase is subject to the final result of the litigation between them and their judgment-debtors.
There is no authority for the contention on behalf of the appellant that when the property is knocked down for a sum equal to, or less than, that eventually found due. The rule has no application. Nor can any sound reason be found to support it. The object of the rule in so far as it relates to judgment-creditors is apparently to prevent the interests of judgment-debtors suffering by sales of their property before their liability is finally determined, and to avoid judgment-creditors profiting at the expense of their debtors by becoming purchasers in sales pending litigation by way of appeal. To uphold the contention in question would, on the one hand, result in judgment-debtors who are appealing against decrees passed against them having to pay more than they are in truth bound to pay in order to prevent a sale of their properties before their liability is finally ascertained, and, on the other, to encourage speculative purchases by decree-holders for the injury of judgment-debtors. In cases where the decree is not altogether reversed but only modified. The view most favourable to a decree-holder-purchaser in the position of the appellant would be that deducible from the case of Baboo Gowree Boyyonath Pershad v. Jodha Singh where it was held that a judgment-debtor seeking as plaintiff to get rid of the sale should have relief only on condition that he paid up what was due under the ultimate decree, in other words, that the decree-Holder-purchaser should be treated as if he held a charge upon what he purchased for what was ultimately found due to him—though no such course appears to have been suggested in the case of Set Umedmal v. Srinath Ray (2), where reliance was placed on the case cited from 19, Weekly Reporter, apparently for another purpose.
Be this is it may. The party seeking relief, here is not the judgment-debtor, but the decree-holder purchaser, who has not prayed for possession on condition that the defendant fails to pay within a time to be fixed by the Court what he had to pay under decree in the second appeal, as he should have done if the view of the law applicable to the case be as stated above. On the countrary he has throughout proceeded on the untenable fooling, that his purchase was absolutely binding on the respondent.
The lower Courts were therefore right in dismissing the suit; this second appeal falls and is dismissed with costs.