Full Judgment
Hayward, J.
1. I concur. I have no doubt that the Benamidar was entitled to sue. The certificate of sale was good title until it set aside in regular proceedings. The general proposition of law has' clearly' been wrongly stated by the lower appellate Court. It would be sufficient to refer to the Privy Council case of Gur Narayan v. Sheo Lal Singh . But it has been argued that the Benamidar had no permission to bid at the sale and that it was therefore a nullity. But no stops were taken to avoid the sale as they might have been in execution on that account, nor was it alleged in theft written statement that there was any fraud. .It was not even alleged in the first appeal Court. It has as a final resource been alleged here, but it has in my opinion not been established. It would appear to me, therefore, no good reason for treating the sale as a nullity, whether or no it was open to the defence to raise the plea of fraud in view of the provisions of Article 166 of the Schedule of the Indian Limitation Act.
2. It has been somewhat difficult to follow the line of reasoning in the remainder of the judgment of the first appeal Court. The learned judge devoted a material part of his judgment to the proposition not raised as an issue that the real remedy for recovering possession was by execution and not by way of suit and he held that there was no real possession recovered in execution, and apparently (the point was not clearly stated) that there was no remedy left by suit. But he did not explain precisely why even in default of recovery of possession in execution there should not have been a regular suit to recover possession upon the title deed, that is to say, the certificate of sale of the Court.
3. The learned Judge held on the other hand on the issue raised that there was no bar to the suit under Order II. rule 2, of the first Schedule of the Civil Procedure Code. But he has not given, so far as it would appear from the judgment, any reasons for that conclusion. It would appear to me, however, to have been correct. For he has found as a fact that the previous suit was to recover possession of different properties from different defendants. If that were so, it was, in my opinion, clear that recourse could not be had to Order II, Rule 2, of the first Schedule of the Civil Procedure Code. My detailed reasons for holding this need not be further stated as they have already been given in the case of Sonu valad Khushal v. Bahinibhai ILR (1915) 40 Bom. 351 : 18 Bom. L.R. 45.
4. It seems to me, therefore, that we ought to restore the decree of the trial Court and reverse that of the first appeal Court.