Mookerjee, J.@mdashWe are invited in this Rule to consider the legality of an order by which the Court of Appeal below, in reversal of an order of the Court of first instance, has directed the confirmation of an execution sale. There is no controversy as to the circumstances under which the order has been made. One Ehaya Hossain obtained a mortgage decree against the Petitioner on the 10th June 1908. The decree was made absolute on the 11th February 1909. Execution was taken out on 13th July 1909, and the properties were purchased at the auction sale which followed on the 20th September 1909, by one Mahomed Habibuddin. On the 9th October 1909, the judgment-debtor applied for leave to deposit the decretal amount, and two days later the Court granted the application. The judgment-debtor, however, on the 5th October 1909, made an application under r. 90 of or. 21 of the CPC of 1908 for reversal of the sale on the ground of fraud and material irregularity in its publication and conduct, which had resulted in substantial injury to the Petitioner. During the pendency of this proceeding, the decree-holder intimated to the Court his willingness to accept the decretal amount and to allow the sale to be set aside, if the judgment-debt was satisfied. Thereupon, the Petitioner alleges, he paid the sum to the decree-holder who certified payment to the Court. On the 12th April 1910, the Subordinate Judge set aside the sale, not on the ground that as the decree-holder had consented to its reversal it could not stand good, but on the ground that the sale had been irregular and the judgment-debtor had suffered substantial injury by reason of the non-publication of the requisite notices and sale-proclamation. The auction-purchaser alone appealed against this order to the District Judge. The learned Judge held upon the evidence that neither material irregularity nor fraud had been established, and that the alleged substantial injury had not been proved. In this view, he set aside the order of the Court of the first instance and directed the sale to be confirmed. The judgment-debtor then applied to this Court and obtained the Rule now under consideration on the ground that the appeal was incompetent because as the decree-holder had consented to have the sale set aside and by acceptance of a sum in full satisfaction of the judgment-debt had precluded himself from challenging its validity, the auction-purchaser had no locus stands in the matter. In support of this proposition, reliance has been placed upon the case of Poorna Chandra v. Doorga Prosad (1). It has further been argued that before an execution sale has been confirmed, the auction-purchaser has no interest in the property, at any rate, no such interest therein as would entitle him to invite the Court to confirm it, even though the decree-holder was not in a position to ask for its confirmation. The question raised is of some novelty and apparently of first impression, but upon well-recognized principles we are unable to hold that the contention of the judgment-debtor should prevail. In the first place, it cannot in our opinion be disputed that the auction-purchaser is entitled to be heard before the execution sale at which he has purchased is set aside. This is manifest from or. 21, r. 92, sub-r. 2, the proviso to which lays down that no order upon an application to set aside a sale shall be made unless notice of the application has been given to all persons affected thereby. See also Kripali Singh v. Pairoo Paul 11 C L. J. 86 (1909). In the second place, the auction-purchaser is not concluded by the decision of the original Court; it is open to him to take the matter to the Court of Appeal, if he has been prejudiced by the order, and obtain its reversal on the ground that it is erroneous. This conclusion follows from fundamental principles which regulate the right of appeal. As was pointed out by this Court in the case of Srinath Das v. Probodh Chunder Das 11 C. L. J. 580 at p. 586 (1910), as a general proposition of law no one can appeal from a judgment or decree unless he was a party to the action or was treated as such, or is the legal representative of a party, or has privet of estate, title or interest apparent on the face of the record. Another requisite of a valid appeal is that the Appellant has an interest in the subject-matter of the proceeding. A third requisite of a valid appeal is that the Appellant should have been prejudicially affected by the judgment or order complained of. Now, in the case of an appeal by an auction-purchaser against an order of the original Court by which the execution sale has been set aside, it cannot be disputed that the auction-purchaser was a party to the proceeding in the Court of first instance., The very circumstance that he is entitled to notice before any order is made to his prejudice shows conclusively that he is treated as a party to the proceedings for reversal of the sale. He has also a substantial interest at stake, because he has paid the consideration for the purchase of the property, and, as observed by their Lordships of the Judicial Committee in Brij Mohan Thakur v. Umanatk Chowdhury I. L. R. 20 Cal. 8 (1892), if no application is successfully made to set aside the sale there is only one duty left to the Court, namely, to pass an order confirming the sale as regards the parties to the suit and the purchaser. Again as pointed out in the case of Adhur Chunder v. Aghore Nath 2 C. W. N. 589 (1898) and in other cases reviewed in Bhawani Koer v. Mathura Prasad 7 C. L. J. 1 at p. 28 (1907), an auction-purchaser does not acquire a full title till the confirmation of the sale, he has what has been described as an inchoate or an equitable right which is perfected or becomes absolute upon confirmation.
2. This view is strengthened by the alteration in the law made by the Code of 1908, under which (sec. 65) the property is deemed to have vested in the purchaser from the time when the properly is sold and from the time when the sale becomes absolute upon confirmation under r. 92, sub-r. I. It may further be observed, as pointed out by this Court in the case of Hiralal Ghose v. Chandra Kanta Ghose I. L. R. 26 Cal. 539 (1899), which upon this point was accepted as good law in Joytata v. Pranhisto 13 C. L. J. 257 at p. 261: s. c. 15 C. W. N. 512 (1910) that whether an appeal is competent or not, depends, not upon the status of the party who prefers the appeal, but upon the nature of the order which is assailed. In the case just mentioned, it was held that if an order is one within the scope of sec. 244 of the Code of 1882, it can be challenged by way of appeal by the auction-purchaser precisely in the same manner as its validity can be contested by the decree-holder or by the judgment-debtor. On this principle, it was ruled in the case of Gopal Singh v. Dular Kuar I. L. R. 2 All. 352 (1880) and Kanlhi Ram v. Bankey Lai I. L. R. 2 All 396 (1880) that the auction-purchaser can appeal against an order made to his prejudice in the course of proceedings for reversal of the sale. It was observed that as it is the duty of the Court, where an objection has been disallowed, to confirm the sale as regards the parties to the suit and the purchaser, it is equally the duty of the Court to hear the purchaser if he appears to answer the objection of the judgment-debtor or decree holder to the sale, and if he has to be heard in the first Court there is no intelligible reason why he should not be heard in the second Court whether he appears as Appellant or Respondent. That this view is based not upon any technical rules of procedure but upon broad principles of justice, equity and good conscience is in our opinion incontestable.
3. The question was in fact raised and discussed as one of principle in a case before the Supreme Court of the United States, Blossom v. Milwaukee Ry. Co. [1864] 1 Wallace 655, and it was ruled that a purchaser at a judicial sale who has complied with the terms thereof and paid the purchase-money has the right to appeal from an order setting aside the sale. Mr. Justice Miller who delivered the unanimous opinion of the Court quoted with approval the following passage from the judgment of Chancellor Walworth in Delaplaine v. Lawrence 10 Paige N. Y. 602. "In sales made by masters under decrees and orders of this Court, the purchasers who have bid for the property and paid their deposits in good faith are considered as having inchoate rights which entitle them to a hearing upon the question whether the sale shall be set aside and if the Court errs by setting aside the sale improperly, they have the right to carry the question by appeal to a higher tribunal." To put the matter in another way, a purchaser or bidder subjects himself to the jurisdiction of the Court so much so that if he fails to complete the sale, he may be penalized in the manner mentioned in r. 86 of Or. 21; it is therefore only just to hold that he acquires a corresponding right to appear and claim at the hands of the Court relief to which he may be entitled under the rules of equity proceedings. This view has been maintained in numerous decisions amongst which may be mentioned, Kneeland v. American Land T. Co. 136 U. S. 89, Magann v. Segal 92 Fed. 252; 34 C. C. A. 323., Flournoy v. Smith 8 Howard (Miss.) 62. County v. Bunch 49 West 599; 96 Pac. 164, Penon v. Crieghton 51 Neb. 659; 71 N. W. 279 Todd v. Gallego 84 Va 586; 5 S. E. 676 and Wood v. Seattle 62 Pac. 185, li of which confirm the right of the purchaser at a judicial sale to appeal from an order for reversal thereof on the principles just explained. On the other hand, the case of In re Robinson 142 Cal. 152 75 Pac. 777 shows that an unsuccessful bidder at a sale cannot appeal, because he acquired no interest inchoate or otherwise, while the case of Thomas v. Elliott 215 Mo. 598; 114 S, W. 987 shows that the right of appeal which would otherwise be enjoyed by the auction-purchaser may be restricted or taken away completely by statutory provision to that effect.
4. From a review then of the principles just explained it is plain that two positions are firmly established, namely, first, that an execution sale cannot be set aside without notice to the auction-purchaser and without opportunity afforded to him to support the validity of the sale: and, secondly, that if the original Court has passed an order adverse to the interest of the auction-purchaser, he is entitled to appeal and test the legality of the order in the superior tribunal.
5. The question next arises whether the rights of the auction-purchaser are affected by the omission of the decree-holder to contest the application of the judgment-debtor for reversal of the sale or by his acceptance of terms from the judgment-debtor which stop him from supporting the sale. In our opinion the right of the auction-purchaser is independent of the right enjoyed by the decree-holder to support the legality of the sale. The auction-purchaser cannot be treated as the representative in interest of the decree-holder, and his position cannot be affected by any arrangement which the decree-holder may be prepared to accept. As a general rule a Defendant who is injured by a judgment against a co-Defendant, may appeal there from, although the Defendant, against whom the judgment is rendered, does not do so. Illustrations of this doctrine may be found in various cases in the reports: thus in Murtay v. Guse 10 West 25; 38 Pac. 753 it was ruled that where an adverse judgment has been given against the owner of the property and several holders of liens thereon, who were all Defendants to an action, the lien-holders were not prevented from appealing against the erroneous judgment, if aggrieved thereby, merely by reason of the failure of the owner to prefer an appeal. A similar view was maintained in French v. Peters [1901] 59 N. E. 449., Mr. Daniel v. Correll 19 111. 226; 68 Am. Dec 587 and Arthur v. Reed 26 Tex. 574; 64 S. W. 831. It is plain that after an execution sale has taken place, the auction-purchaser is quite as much interested in the proceedings as the decree-holder himself, though no doubt their points of view may be different: the former has deposited the purchase-money, and his bid has been accepted by the Court, with the result that if the sale cannot be set aside in one or other of the different modes prescribed by the Code, his purchase must be confirmed; the decree-holder, on the other hand, is interested to see that the sale continues in force so that the proceeds may be available for the satisfaction of the judgment-debt. It is conceivable that the decree-holder may be satisfied if his claim is paid in full, and he may not be willing to enter into a contest with the judgment-debtor about the legality of the sale: but that is no reason why the auction-purchaser should have his position affected without his consent. He has a substantial interest at stake, and he is entitled to prove the validity of his purchase irrespective of the subsequent conduct of the decree-holder. If any other view were maintained, the provisions of r. 89 of or. 21 would be futile. That rule clearly contemplates that an execution sale may be set aside on payment of the judgment-debt to the decree-holder and of statutory damages to the purchaser, if the application is made within the prescribed time. If it is open to the judgment-debtor to enter into an engagement with the decree-holder for reversal of the sale at any time without the assent of the auction-purchaser and without the payment to him of the sum prescribed by r. 89, no judgment-debtor need avail him self of the provisions of that rule. In our opinion, the view taken by the Court of first instance in the present case, namely, that the auction-purchaser was not bound by the alleged arrangement between the decree-holder and the judgment-debtor and that the sale could be set aside, if at all, only on proof of the grounds mentioned in r. 90, is sound : and if the correctness of this position is once conceded, the conclusion becomes inevitable that the auction-purchaser was entitled to test the propriety of the order of the original Court by an appeal to the District Judge.
6. The learned Vakil for the Appellants placed much reliance upon the case of Poorna Chandra Roy v. Doorga Prosad Babu 3 Shome 104 (1880)., in which it appears to have been ruled that in a suit brought under sec. 14 of the Putni Regulation, for reversal of a sale against the zemindar and the purchaser, an appeal against the decree cannot be maintained by the purchaser alone. That case, in our opinion, is clearly distinguishable. The zemindar as well as the purchaser had jointly preferred an appeal to this Court against the decree for reversal of the sale. The zemindar applied to the Court for dismissal of the appeal so far as he was concerned, because in his opinion the decree of the Court below could not be success-fully challenged: the appeal was thereupon dismissed. The purchaser then claimed to prosecute the appeal so far as he was concerned. The Court held that he could not be heard because the question at issue, namely, whether there was or was not any arrear for which the zemindar could take proceedings under the Putni Regulation, was one between those two parties alone, and the purchaser could not give the Court any information about it. Upon a careful examination of the judgment we are not satisfied that it lays down a comprehensive rule of law that in cases of sales under the Putni Regulation the purchaser can, in no event, appeal against the decree of reversal unless the zemindar also joins in the appeal. If the learned Judges intended to lay down any such rule the question when it arises again may require reconsideration. In any event the learned Judges clearly intimated that there was in this respect no analogy between a putni sale and a sale in execution of a decree under the Civil Procedure Code, in fact they added that in cases of execution sales, when the question before the Court is one of regularity of the proceedings, the purchaser, who is himself a party to those proceedings, may very well appear before the Court and maintain their regularity. In our opinion the case of Poorrna Chandra v. Doorga Prosad 3 Shome 104 (1880) does not really advance the contention of the Petitioners.
7. We may add that at one stage of the proceedings we were inclined to make an order for the reversal of the sale under r. 89 of or. 21 of the Code. We are unable to do so, however, because under r. 92, sub-r. 2, the deposit must be made within thirty days from the date of sale, and we have no power either under sec. 5 of the Limitation Act, or under sec. 148 of the CPC of 1908, to enlarge the time. We are therefore constrained to hold that the appeal to the District Judge was competent and that no grounds have been established for our interference with his order in the exercise of our re-visional jurisdiction.
8. The result is that the rule is discharged: but there will be no order for costs in this Court.
Caspersz, J.
9. The Petitioner is the judgment-debtor whose application, under Or. XXI, r. 90 of the Code of Civil Procedure, was allowed by the Subordinate Judge of Patna the sale of the Petitioner''s properties being set aside. During the pendency of that case the decree-holder accepted his dues from the Petitioner and certified satisfaction to the Court. But the auction-purchaser took the matter in appeal before the District Judge who confirmed the sale for the reasons given in his judgment. The Petitioner next obtained a rule from this Court, and the point for determination is whether the auction-purchaser''s appeal to the District Judge was competent.
10. Under or XLIII, r. I (j) of the Code, an order under r. 92 of or. XXI, setting aside a sale, is appeal able at the instance of any one whose interests are affected by the sale (see r. 90 of Or. XXI). It appears, therefore, that the auction-purchaser was entitled to prefer his appeal to the District Judge. The auction-purchaser, it is true, had no vested right to the properties in question by reason of any order passed by the Court confirming the sale. But he had an equitable title to the property, and a right, in the last resort, under r. 93 of or. XXI, namely, the right to get back his purchase-money with or without interest. The carriage of the execution proceedings was in the hands of the decree-holder who elected to compromise with the judgment-debtor contra curs us curice. Such a compromise, however, cannot be allowed to defeat the interests of the auction-purchaser and the intention of the Code which allows a deposit to set aside the sale only if the money is paid in a particular way and within 30 days. See Or. XXI, rr 89 and 92 (2). I, therefore, agree, for the reasons generally stated in the judgment of my learned brother, that this rule must be discharged.
