1. We are invited in this appeal to consider whether a saleof the properties of the appellant in execution of an ex parte mortgage-decree,should stand confirmed. The sale was held on the 2nd November 1911 and wasconfirmed on the 13th December following. The decree-holder, who had himselfbecome the purchaser, forthwith transferred the property to another person. Onthe 19th August 1912, the judgment-debtor applied to have the sale set aside;he alleged that the sale had been irregularly and fraudulently held and hadcaused him substantial injury. He joined as opposite parties to hisapplication, both the decree-holder auction-purchaser and the assignee fromhim. At the same time, he instituted proceedings to have the ex. parte decreeitself set aside. On the 22nd February 1913, the application to set aside theex parte decree was granted. Thus, on the 28th July 1913, when the Munsif tookup for disposal, the application to set aside the sale, he found that the exparte decree had already been set aside. He consequently held that the salemust be set aside on the authority of the decision in Set Vmedmal v. SrinathRay 27 C. 810 : 4 C.W.N. 692 although in the interval, the decree-holderauction-purchaser had transferred the property to a stranger. In this view, hedeclined to take evidence as regards the merits of the case and set aside thesale without enquiry into the allegations of fraud, irregularity andsubstantial injury. On appeal by the assignee from the decree-holderauction-purchaser, the District Judge has reversed this order and has directedthat the sale do stand good. He has held that the assignee from thedecree-holder stands on a better footing than his assignor and is entitled toretain the property, notwithstanding the cancellation of the ex parte decreewhich was the foundation for the sale. The judgment-debtor has now appealed tothis Court and has invited us to hold that the sale stood cancelled as soon asthe ex parte decree was set aside and that it was immaterial that the propertyhad meanwhile been assigned away by the decree-holder auction-purchaser. We areof opinion that this contention is well-founded and must prevail. In the firstplace, it is clear that the primary Court was competent to set aside the saleon a ground which was not mentioned, in the application of the judgment-debtorand did not in fact exist when that application was made. It is well settledthat the Court may, in order to shorten litigation or to do complete justicebetween the parties, take notice of events which have happened since theinstitution of the proceedings and may afford relief to the parties on thebasis of the altered conditions. The decisions which recognise this principle,are reviewed in Rai Charan Mnndal v. Biswanath Mandal 26 Ind. Cas. 410 [LQ/CalHC/1914/168] : 20C.L.J. 107 and reference may be made particularly to Hazari Mal v. JanahiPrasad 6 C.L.J. 92 and Ramyad Sahu v. Bindeswari Kumar Upadhay 6 C.L.J. 102.

2. In the second place, it is clear that the effect of thecancellation of the ex parte decree on the execution sale held thereunder isnot touched by the fact that the decree-holder auction-purchaser has assignedaway the property sold. As fully explained by Jenkins, C.J., in Satis ChandraGhose v. Rameswari Dasi 31 Ind. Cas. 894 [LQ/CalHC/1914/309] : 22 C.L.J. 409 the assignee stands inno better position than his assignor. This is borne out by the decision of theJudicial Committee in Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan 15 I.A. 12: 10 A. 166 : 5 Sar. P.C.J. 129 and it is plain that the contrary view adoptedin Sheik Ismal Rowther v. Rajab Rowther 30 M. 295 : 17 M.L.J. 165 : 2 M.L.T.186 is supported neither by principle nor by authority. The theory whereby aspecial protection is afforded to a stranger who purchases at an executionsale, will be found expounded in the case of Krishna Chandra Mandal v. JogendraNarain Roy 27 Ind. Cas. 139 [LQ/CalHC/1914/323] : 20 C.L.J. 469 : 19 C.W.N. 537; that rule cannotbe extended to an assignee of the decree-holder auction-purchaser.

3. We are informed that on re-trial of the suit a decree hasbeen made in favour of the plaintiff against the defendant; but as Maclean,C.J., pointed out in Set Umedmal v. Srinath Ray 27 C. 810 : 4 C.W.N. 692 thatdoes not affect the question of the effect of the cancellation of the ex partedecree upon the sale held thereunder; as soon as the ex parte decree was set aside,the sale fell through, and the fresh decree subsequently made, could notpossibly validate that sale. On this ground, the present case isdistinguishable from the decisions in Hazari Mal v. Janaki Prasad 6 C.L.J. 92and Ramyad Sahu v. Bindeswari Kumar Upadhya 6 C.L.J. 102 where the very decreewhich was the basis of the sale, though temporarily nullified, was ultimatelymaintained.

4. The result is that this appeal is allowed, the order ofthe District Judge set aside and that of the Court of first instance restored.Each party will pay his own costs throughout the proceedings.

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Abdul Rahaman vs. Sarafat Ali and Ors. (24.08.1915 - CALHC)