Full Judgment
Pramada Charan Banerji and Ryves, JJ.
1. This appeal arises out of a suit brought by the plaintiff appellant for possession of a house which originally belonged to the defendant respondent. In execution of a decree obtained against the said defendant the house was sold by auction so far back as the 23rd of November, 1910 and it was purchased by the plaintiff. He obtained formal delivery of possession, but as he did not get actual possession, he brought the present suit. The claim was contested on the ground that the house claimed was the house of an agriculturist and was therefore not liable to sale in execution of a decree in view of the provisions of Section 60 (c) of the Code of Civil Procedure. This objection prevailed in the courts below and the suit was dismissed. The plaintiff has preferred this appeal and he raises two questions. The first is that the lower appellate court ought to have determined whether the house was the house of an agriculturist or was appurtenant to the house of an agriculturist within the meaning of Clause (c) of Section 60; and, secondly; even if the house was of the description mentioned in that Clause whether, after that sale and confirmation of sale, it was open to the defendant at this stage to question the validity of the sale and the title which the plaintiff had acquired under it. As regards the first point, the lower appellate court says that it was a fact not disputed that the defendant was a tenant and that the house in dispute was an appurtenance to his tenancy. We mast accept this statement of fact as correct and assume that the house in dispute is an appurtenance to the tenancy of an agriculturist as such. If an objection had been taken before the auction sale it ought not to have been sold; but the question which arises is whether after the sale and the confirmation of the sale its validity can now be questioned by the defendant, as against whom the sale has become conclusive by reason of its confirmation. Under Order XXI, Rule 92, after a sale has taken place and has been confirmed the auction-purchaser acquires a title to the property. In the present instance no objection to the sale was raised before it took place m or at any time. It is not suggested in the pleadings that the defendant judgment-debtor was not aware, of the execution proceedings. As between him and the auction-purchaser the sale has become conclusive and the auction-purchaser has acquired a vested interest in the property sold. If objection had been raised on behalf of the defendant before the auction sale, the court would have had jurisdiction to consider and decide whether the property was of the description mentioned in Section 60(c), and if it had decided that the property was liable to sale and no appeal had been preferred against such decision, the sale of the property could never be questioned. In the present case no objection having been taken and the sale having become conclusive as between the parties, it is not open, in our opinion, to the defendant after the lapse of so many years from the date of the sale to contend that the sale ought never to have taken place and conveyed no title to the purchaser. This view is supported by the decision of this Court in Umed v. Jas Ram (1907) I. L. R., 29 All., 612 and also by the decision referred to in the judgment in that case. The rulings of the Bombay High Court in Pandurang Balaji Bagave v. Krishnaji Govind Parab (1903) I. L. R., 28 Bom., 125 and of the Calcutta High Court in Dwarkanath Pal v. Tarini Sankar Ray (1907) I. L. R., 34 Calc., 199 are to the same effect. The only case in which a contrary view appears to have been held is the unreported judgment of a single Judge of this Court in Second Appeal No. 327 of 1910, decided on the 16th of January, 1911. In that case the learned Judge held that an objection as to attachment and sale could not be made before the auction sale. We are unable to agree with this view, and we do not feel ourselves justified in following that ruling id the face of the other rulings to which we have already referred. The result is that we allow the appeal, set aside the decrees of the courts below and decree the plaintiffs suit with costs in all courts.