L.S. Jackson, J.@mdashThe special appeal in this case raised a question of some difficulty and of great importance. We are asked to decide whether upon a mortgage in the English form, relating to immoveable property, situated in the mofussil, and containing a power of sale, if the property were sold under that power and without reference to the Court, each sale could be supported as passing a valid title to the defendant. We were referred to the case of Bhuwanee Churn Mitr v. Jykishen Mitr S.D.A., 1847, 354 in which the Judges of the Sadder Court held that a person, relying upon such sale, could not eject a party holding under the Mortgagor. On the other hand, we were referred to the case of Sonatun Bysack v. Koonjo Behari Bysack Unreported, which was decided by a Division Bench of this Court in which a contrary view was affirmed, although the question there arose incidentally upon a question of costs. I confess that, if we were called upon to determine this point, we should have felt considerable difficulty; but, on calling upon the respondent''s vakil, he laid before us an entirely different point upon which he submitted the plaintiff''s suit ought to be dismissed. On that point we have beard the arguments of the special appellant, and the result is that in our opinion the objection thus referred to ought to prevail. It seems that the plaintiff relies upon a mortgage in the nature of a conditional-sale dated the 27th Bhadro 1271 (11th September 1864). That was a transaction between the owner of the property and one Tarasunker Rai Chowdhry, and it was stipulated that the amount advanced by him should be repaid on or before the 30th Sraban 1272 (13th August 1865). The payment was not made, and consequently it is said Tarasunker issued the notice of foreclosure on the 7th September 1865, and the notice was served on the owner Sharadhone Rai Chowdhry. The defendant''s case was that some years before the date of the transaction, that is on the 10th of December 1862,Shamdhone Rai Chowdhry borrowed Rs. 1,000 from one Mr. Cones and had executed, the mortgage deed in the English form previously mentioned, and that under the power of sale contained in that deed, the property being sold by Messrs. Mackenzie, Lyall & Co., was purchased by the defendant on the 18th August 1865, that is to say, some nineteen or twenty days before the plaintiff applied for foreclosure. This question appears to have been considered by the Subordinate Judge who first tried the suit, but he was of opinion that the objection was not good. It was alto raised before the District Judge on appeal, and the District Judge says:--"No authority has been offered in support of the contention, that appellant, as purchaser from the first mortgagee) is entitled to notice of foreclosure from the second mortgagee. Possibly, looking at appellant as assignee of the mortgagor''s interest in the property, be might be so entitled, but that would only have given him an equity of redemption, and I do not understand that the appellant wishes to be considered as assignee in any form whatever: and while I agree with the appellant that, if the Subordinate Judge thought it material to the case that appellant should prove his possession between March 1866 and the date on which the sale to Tarasunker Rai became absolute, an issue should have been framed, and opportunity for adducing evidence on the point should have been given, as the case now stands, it is no necessary for me to pass any order on this point or upon the appellant''s objection to the order for witnesses'' expenses. I am of opinion that the order of the Subordinate Judge, so far as it decrees the 4 1/2 bigas of kheraji land, sued for by the plaintiff, ought to be reversed." So that the Judge threw out the suit on a different ground, viz., the validity of the sale on the earlier mortgage deed.
2. Now the decisions upon the point which I have mentioned, and which is urged by the special respondent are (firstly) one which was referred to at the original hearing in the case of Gunga Gobind Mandal v. Bani Madhab Ghose 3 B.L.R., 172. In that case the judgment delivered by Markby, J., contains these words:--"It also appears to me to have been decided by a great preponderance of authority in this Court, although I admit that the decisions are not altogether reconcileable, that a purchaser out and out of the mortgagor''s interest, whether by public or private sale, and whether he be in possession or not, must be served with notice, except where any alienation of the mortgagor''s interests has been prohibited by contract between the mortgagor and mortgagee." The other case which is still stronger is that of
