A bona fide purchaser for value from a mortgagee who has committed fraud in obtaining a decree and purchasing the mortgaged property in execution thereof is not entitled to retain the property as against the mortgagor.

S. N. Jha, J.

1. This Second Appeal is by the defendant. The plaintiff-respondents instituted Title suit No.79 of 1970 before the Munsif, Chapra, seeking decree of redemption of the zarpeshgi deed dated 28-7-16 (at some places the date of the deed is mentioned as 28-7-17) executed by their ancestor gopal Mahto in favour of Akram Hussain for Rs.200/-. Akram Hussain instituted Mortgage suit (T. S. No.47 of 1933) and got the land auction sold in execution Case No.898 of 1935. Akram hussain himself purchased the land on 12-2-36. His son Ahmad Hussain latter sold it to the defendant in 1948. The plaintiffs tendered the amount of zarpeshgi to the defendant and on refusal deposited the same in Court as required under Sec.83 of the Transfer of property Act. On the defendants refusal to accept the deposit they instituted the suit. According to the plaintiffs, the decree in the mortgage suit (Suit No.47 of 1933) was obtained fraudulently by suppressing material facts and playing fraud upon the Court. The decree and the auction purchase being fraudulent, the subsequent sale by the auction-purchaser did not confer valid title upon the defendant. According to the defendant, she is a bona fide purchaser for value and, therefore, whatever be the nature of the decree in Mortgage Suit no.47 of 1933 and the auction purchase, her right, title and interest in the land should not be disturbed.

2. The trial Court come to the conclusion that both the ex pane decree in mortgage Suit No.47 of 1933 and the auction sale were fraudulent but the act of fraud committed by Akram Hussain and others could not affect in any way the rights of the purchaser i. e. the defendant as she was neither in collusion with Hussain and others nor was aware of the fraud. Accordingly, the court declined to grant decree of redemption in favour of the plaintiffs. On appeal by the plaintiffs the appellate court confirmed the finding as to the fraudulent nature of the decree and auction sale. It held that the defendant did not acquire any valid title and interest in the land by virtue of the purchase. In coming to the said conclusion the appellate Court also held that no delivery of possession of the land was effected pursuant to the auction purchase and the sale certificate had remained a paper transaction.

3. This appeal was admitted on 12-8-83 on the following questions of law: -

(a) Whether the suit for redemption for part of the security was at all maintainable?

(b) Whether the plaintiffs (read defendant) being bona fide purchaser for value, could be dislodged from the purchased property? the appeal came up for final hearing on 8-5-92. A learned Single Judge of this Court held that the suit having been filed with respect to part of the mortgaged property, in fact, one of the plots in suit not being covered by the mortgage bond, the suit was not maintainable as Court could not grant partial redemption. The first question having, thus, been answered in favour of the defendant-appellant, the learned Judge did not think it necessary to go into the other question. Accordingly, on the basis of the finding on first question the judgment and decree of the appellate court below was set aside and the appeal was allowed.

4. The plaintiffs challenged the judgment of this Court in the Supreme court in S. L. P. (Civil) No.8447 of 1992, giving rise to Civil Appeal No.3403 of 1993. They took the plea that the stand taken on behalf of the defendant to the effect that the plaintiffs have sought redemption with respect to only two plots out of which one was never the subject matter of mortgage and, as such, the suit for redemption was not maintainable, was an error of record. The supreme Court, prima facie, found substance in the contention that the suit had been dismissed by the High Court under misconception about factual position with respect to subject matter of dispute. Accordingly, on 27-7-93 it set aside the judgment of this Court and remitted the matter back to this Court for