B.K. Mullick, J.

1. The plaintiff is a prior mortgagee in respect of a four-annas four-pies share in Mouza Nawadih, which was the property in suit. He got a decree upon his mortgage-bond on the 31st of May 1807, brought the property to sale, purchased it himself on the 4th of July 1900, and obtained delivery of possession.

2. The defendant is the father of one Amir, who was a second mortgagee not only of Nawadib, but also of another property. Amir appears to have died after delivery of possession to the plaintiff and the defendant appears to have obtained a decree upon Amir's mortgage on the allegation that Amir was his benamidar. The date of the defendant's decree is the 8th of April 1902. He alleges that he executed the decree, bought the property at auction and obtained registration of his name in the Collectorate.

3. The plaintiff sues for declaration of title and confirmation of possession or in the alternative for recovery of possession, dating his cause of action from the 4th of February 1911, on which date be came to know that the defendant's name had been registered in the Collectorate.

4. The Munsif decreed the suit, but he gave the defendant permission to redeem by paying the plaintiff Rs. 81-2-3 with interest from 31st of May 1897 (the date of the plaintiff's decree) up to the 4th of July 1900 (the date of his purchase). In appeal the Subordinate Judge also decreed the suit, but he has held that the defendant was not now entitled to redeem as he had not done so before the order absolute in the plaintiff's mortgage suit. The present second appeal is preferred by the defendant.

5. The Munsif found that Amir was not the benamidar of the defendant. There was a cross-appeal on this point before the Subordinate Judge which has been dismissed without adjudication, because the learned Subordinate Judge has assumed the position most favourable to the defendant, namely, that Amir was really his benamidar. If Amir was not the benamidar of the defendant, the defendant is obviously a trespasser and has no title to the property. But upon the assumption made by the learned Subordinate Judge, let us see whether the learned Subordinate Judge is right. The learned Subordinate Judge States that the defendant was bound to redeem before the order absolute. This view, in my opinion, is wrong. The right of redemption continued till the confirmation of sale, Bibijan Bibi v. Sachi Bewah 31 C. 863 : 8 C.W.N. 684.

6. The defendant next contends that as no notices were issued upon him in the execution proceedings in connection with the decree on which the plaintiff bases his title, he is not bound by the sale and by the plaintiff's purchase, which passed to the plaintiff only the right, title and interest of the mortgagors and not the defendant's equity of redemption. He relies upon Khairaj Mal v. Daim 32 C. 296 : 2 A.L.J. 71, 1 C.L.J. 584 : 7 Bom. L.R. 1 : 9 C.W.N. 201 : 32 I.A. 23 : 8 Sar. P.C.J. 734. But the reason of decision in that case was that the person whose property was sold was not at all a party to the suit, and their Lordships of the Privy Council observed that a sale held in execution of a decree in a suit not properly constituted is not voidable but is a nullity. In the present case Amir was a party to the suit and the decree was obtained after service of summons upon him. The omission of his name in the execution proceedings was merely an irregularity. The sale, even though the mortgagee creditor was himself the purchaser, could not be considered a nullity. Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 10 M.L.J. 368 : Bom. L.R. 927 : 27 I.A. 216 : 7 Sar. P.C.J. 739 is conclusive authority upon this point, although in that case the purchaser was a third party. The defendant's only remedy was by an application to set aside the sale under the provisions of the Civil Procedure Code, but such an application would now be barred. He might also have brought a suit for redemption, but that also would be barred. As his right to redeem is barred, he ought not to he allowed to exercise that right as a defendant in the present suit for recovery of possession. In my opinion the plaintiff's sale being a valid sale and binding upon the defendant, the defendant has no answer to the suit. The decision of the learned Subordinate Judge decreeing the suit is correct and the appeal is dismissed with costs.