Judgement

APPEAL from a decree of the High Court (June 11, 1883), in two appeals which reversed a decree of the Subordinate Judge of Moradabad (March 16, 1882).

The question in this appeal was whether certain auction sales of property formerly in the possession of the Plaintiff, made by order of the Court in the year 1874 and two following years, could be invalidated, the decree under which such sales took place having been subsequently modified in appeal, and as to whether or not the claim for invalidation of such sales was barred by limitation.

The facts are stated in the judgment of their Lordships.

The judgment of the High Court was as follows—

" Two pleas were urged before us at the hearing—first, that the substantial relief prayed in the suit being to have the auction-sales of November, 1874, 1875, and 1876 set aside, it is barred by limitation, whether we look to art. 14 of Act IX. of 1871, or to art. 12 of Act XV. of 1877; secondly, that the Appellants, either themselves being or representing the auction-purchasers at such sales, which have never been set aside, have acquired an indefeasible title to the property sought to be recovered and the Plaintiff-Respondent has no cause of action.

17 Law. Rep. 15 Ind. App. 12 ( 1887- 1888) Nawab Zain-Ul-Abdin Khan V. Muhammad Asghar Ali Khan

118

"It appears to us unnecessary to discuss the soundness or otherwise of this latter contention, as the first ground relied on by the Appellants, is, in our opinion, a valid one, and fatal to the maintenance of the suit. The only way in which the Plaintiff can claim to assail the title of the Defendants is by obtaining the cancelment of the sales at which the latter purchased; and so long as those sales stand good, their position is unimpeachable. In short, the Plaintiff cannot secure the main object of his suit, namely, possession of the properties, until he has had the sales set aside, which is virtually what is asked by the plaint. We think, therefore, that whether the old or the new limitation law is applicable, the suit is barred by limitation and cannot be entertained."

Cowie, Q.C., and Arathoon, for the Appellant.

Doyne, and Raikes, for the Respondents.

Reference was made to Sahibzada Zeinulabdin Khan v. Sahibzada Ahmed Raza Khan and Others (Law Rep. 5 Ind. Ap. 233.); Jadunath Koondu Chowdhry v. Brojanath Kundu (6 Beng. L. R. Appendix, p. 90.); Kunhaye Singh v. Oomadhur Butt (21 Suth. W. R. 291.); Abdul Haye v. Nawab Raj (Beng. L. R. Suppl. F. B. at p. 911.).

The judgment of their Lordships was delivered by

SIR BARNES PEACOCK —

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 pro perties 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.

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 l