Wort, Ag.C.J.

1. This case, in my judgment, which is an appeal by the defendant in an action for redemption, depends entirely upon the circumstances surrounding and the effect of sale in execution of a rent decree of 1911. The case depends also upon whether Gauri Shanker was joint with one Ramji, who was defendant No. 2 in the action and was the son of the original mortgagee, Gauri Shanker in that sense being the mortgagee. The purchase by Gauri Shanker took place on March 5, 1914, and it was a purchase from the landlord who himself had purchased the holding in the rent sale in the action which he had brought and to which I have already referred. There is a finding by the Courts below that Kishun Sah who was the uncle of Ram Khelawan was benamidar of Gauri Shanker.

2. Now as the plaintiff, who sought to redeem in this suit, purchased from the original mortgagor, the tenant of the holding, on June 3, 1929, the case, as will be seen depends upon whether the equity of redemption at the time that it was sold to the plaintiff in 1929 was still subsisting. We have listened to the elaborate arguments of the learned Advocate on behalf of the respondent as also of Dr. P. K. Sen, who appears for the appellant defendant; but, in my judgment, the case depends upon a very short point to which I referred in the commencement of my observations.

3. There were two authorities relied upon by the learned Advocate on behalf of the respondent: one was in the decision of their Lordships of the Judicial Committee of the Privy Council in Nawab Sidhee Nuzur Ally Khan v. Rajah Ojoodhyaram Khan 10 MIA 540 : 1 Ind. Jur. 185 : 2 Sar 133 (PC). That case was relied upon more particularly for an observation of their Lordships to the effect that a person could not benefit from his own wrong; but when the opinion of their Lordships of the Judicial Committee which was stated by Sir Edward V. Williams is examined, it will be seen that that case has no application to the facts of the case which is before us. In this connection I should observe that the judgment of the learned Judge in the Court below depends, as I have already stated, upon the finding that Gauri Shanker was joint with defendant No. 2 who was the son of the original mortgagee, and in that sense and in that sense only, was he the mortgagee, a fact which is to be found in a statement made by the learned Judge towards the end of his judgment and it is this:

I, therefore, hold that the zarpzshgidars having purchased the zarpeshgi property in execution of a rent sale brought about by their own default the sale did not deprive the mortgagor, defendant No. 5 of his equity of redemption. As defendant No. 5 has sold the same to the plaintiffs the plaintiffs have the right to redeem.
4. Shortly, I will repeat the facts so far as this execution arising out of the rent action is concerned. The decree was in 1911, the landlord purchased the holding in execution of that decree and it was in 1914, about two years after, that Gauri Shanker bought the holding from the landlord. It is contended on behalf of the respondent that the mere fact that there was default in payment of rent on the part of the mortgagee who is in possession and who was under obligation to pay rent under the mortgage, was in itself a fraud. That is how I understand the argument. But the learned Judge in the Court below, as will be seen from the statement which I have just read, bases his judgment on the bare fact that there was default by the mortgagee and that default in no way deprived the mortgagor of his equity of redemption. Now, shortly stated, the position is this. When the holding was put up for sale in execution of the rent decree and the landlord purchased it, the equity of redemption ceased to exist. For the contention to which I have just referred, on behalf of the respondent, reliance is placed upon a decision of the learned Judges of the Madras High Court in Sanagapally Lakshmayya v. Intoory Bolia Reddy 26 M 385. There the position was reversed. The question there was not the rights of the mortgagor but of the mortgagee and the facts were shortly these. In 1886 the first defendant in the action had given a simple mortgage to X. Two years afterwards the property, the subject-matter of the mortgage, became the subject-matter of a revenue sale and was purchased by a third person.

5. In 1894 that thirds person sold the property to the mortgagor. The mortgagor then entered into another mortgage transaction mortgaging the property to the plaintiff. The original mortgagee of 1886 in the year 1895 sold the mortgage or assigned the mortgage to the father of defendant No. 2. This purchaser of the original mortgage then brought an action on the mortgage. There was a second action by the mortgagor to set aside the decree which had been obtained by the purchaser of the property in the year 1895. The argument in the case there was that when the mortgagor of the first mortgage purchased privately from the purchaser in the revenue sale (it was purchased sometime after the revenue sale I should have added) the liability to the transferee of the security in the first mortgage was re-attached to the land. It is that argument which is relied upon by the respondent in this case. In my judgment having regard to the fact that the rent sale intervened between the mortgage and the purchase of the equity of redemption by the plaintiff in this action and the circumstances of that purchase are the facts upon which this case depends. Now referring again to the decision of their Lordships of the Privy Council reported in Nawab Sidhee Nuzur Ally Khan v. Rajah Ojoodhyaram Khan 10 MIA 540 : 1 Ind. Jur. 185 : 2 Sar 133 (PC), it is necessary to notice the observations of their Lordships. The first matter, to which I would make reference is stated on p. 557 Page of 10 M.I.A.--[Ed.] of the report:

Assuming, as we must, the agreement to be proved, was this sale, as between Abbott and M'Arthur, really meant to be a sale under the revenue laws for arrears of revenue, or was it a device part of the machinery, as it were to effect a fraud
6. Their Lordships had already stated the terms of the agreement between Abbott and M'Arthur which quite clearly was for the purpose of bringing about the fraudulent revenue sale. Later in the course of judgment their Lordships make this most significant observation:

This decision proceeds entirely upon the ground that, as between these parties, the sale must now be considered as a private sale. The decision has no application to interests derived under a real auction sale.
7. In other words their Lordships of the Privy Council considered that on the existing facts of the case the decision was as if the revenue sale had not taken place. Now I do not think that it is necessary in this case to express any opinion as to what would have been the position had this been a purchase from the mortgagee by private treaty; but this much is clear, when once the sale in execution of the rent decree took place in the absence of fraud (which has not been established in this case) the right or interest which the tenant had in the property, that is to say, his right to redeem was extinguished. If it was extinguished, then the plaintiff, who claims his right to redeem by reason of the purchase in 1929, has no such right. In the absence of any finding of fraud, and in my judgment we cannot infer fraud in this case from the mere fact that the mortgagee failed to pay, the rent sale stands and in my judgment, therefore, the plaintiff had no right to redeem.

8. For these reasons, in my opinion, the decision of the learned Judge in the Court below cannot be upheld, the appeal must be allowed and the suit dismissed with costs throughout.

Sankara Balaji Dhavle, J.

9. I agree. The learned Subordinate Judge is definitely in error when he says that the zarpeshgidars having purchased the zarpeshgi property in execution of a rent sale brought about by their own default, the sale would not deprive the mortgagor of his equity of redemption. It was not the zarpeshgidars but the landlords themselves that purchased the holding in execution of the rent sale, though it is true that it was the zarpeshgidars' default that had led to the rent suit and the rent sale. It is not necessary to consider what the position would have been if the zarpeshgidars had purchased the holding at the rent sale. The facts actually before us are that the landlord purchased the holding and took possession through the Court, and served v. notice upon the mortgagee under Section 167, Bengal Tenancy Act, to annul the encumbrance. Thereupon the mortgagee brought his suit of 1913 to have his mortgage right declared and for other reliefs. In this suit the mortgagor was joined as a party defendant. He did not put in an appearance, and the suit ended in a compromise between the landlord and the mortgagee) according to which the mortgagee's rights as such were preserved and the equity of redemption was passed to the mortgagor's uncle who was separate from him. The suit of 1913 was, it must be remembered, brought in order to undo the sale that had been held in execution of the landlord's rent decree. We are informed that the decree actually drawn up says nothing about the mortgagor but disposes of the suit in terms of the compromise in respect of the parties that had joined in the compromise. The result was that though the suit was brought to challenge the rent sale, this sale was not in fact set aside though mortgagee's rights were affirmed by the compromise which he obtained from the landlord.

10. The mortgagee's equity of redemption which had been extinguished by the rent sale was not revived by the compromise, but the mortgagee's right which was recognised in that transaction imported a corresponding right to redeem which passed under the compromise from the landlord purchaser to the mortgagee's separated uncle. This was three or four years after the rent sale. During the interval the equity of redemption was neither in the mortgagor nor, of course, in the mortgagee. Later on the mortgagee's successors, or members of the joint family to which he belonged, obtained a ladavi deed from the wife of Kishuni, the person to whom the equity of redemption had been assigned under the compromise in the suit of 1913. It was thus some considerable time after the rent sale that the equity of redemption and the mortgagee's right became vested in one and the same person or body of persons. The contention on behalf of the respondent is that it was not competent to the mortgagee by any such contrivances to defeat the mortgagor's right to redeem, and in support of this contention great reliance was placed on the case on Sanagapally Lakshmayya v. Intoory Bolia Reddy 26 M 385. This decision proceeded in the view that the mortgagor who was in default in that case could not be allowed to take an advantage of his father's wrong and plead for his own benefit that by reason of such wrong there had been a statutory extinction of the second defendant's mortgage security. The learned Judges applied this principle by extending to the case before them the principle adopted by their Lordships of the Judicial Committee in Nawab Sidhee Nuzur Ally Khanv. Rajah Ojodhyaram Khan 10 MIA 540 : 1 Ind. Jur. 185 : 2 Sar 133 , but the decision last-mentioned was clearly expressed as a decision based on the view that in the circumstances of ' that case the Court sale must be considered as a private sale. It cannot be said that in the present case the rent sale can possibly be regarded as a private sale.

11. It is true that the mortgagee was under an obligation to pay the rent of the holding as it fell due; and it is also true that because the mortgagee defaulted in paying it, therefore, the landlord sued for the rent and afterwards proceeded in execution, to put the holding up to sale. No collusion, however, has been established between the landlord and the mortgagee. The sale was, therefore, perfectly good and the time for setting it aside on any ground whatsoever is long past. The mortgagor had an opportunity of joining in the attack that was made on that sale by the mortgagee in the suit of 1913, but, as I. have already stated, he did not put in an appearance in that suit at all. That in such cases a sale must be got rid of before a mortgagor can claim to enforce his equity of redemption is abundantly established by the Full Bench decision of the Calcutta High Court in a case cited by Dr. P. K. Sen, Uttam Chandra Dow v. Raykrishna Dalal 47 C 377 : 55 Ind. Cas. 157 : AIR 1920 Cal. 363 : 24 CWN 229 : 31 CLJ 98. This question was apparently not considered in Sanagapally Lakshmayya v. Intoory Bolia Reddy 26 M 385. It may be that no question of limitation arose in that case, but, as has already been remarked, in the decision in Nawab Sidhee Nuzur Ally Khan v. Rajah Ojooddhyaram Khan 10 MIA 540 : 1 Ind. Jur. 185 : 2 Sar 133 (PC), their Lordships of the Judicial Committee, after holding that the Court sale must be considered as a private sale in the circumstances of that case, remarked that their opinion upon this point disposes of the first bar of limitation by effluxion of time under Act 1 of 1845. Whether or not that bar of limitation arose in the Madras case, it is clear that it does arise in the present case. Unless the rent sale can be set aside, the mortgagor or his assignee cannot be heard to assert his right to redeem, and his right to get that rent sale set aside, so as to leave him free to assert his right to redeem, is clearly barred by time.