JUDGMENT Ormond, J. - The landlord obtained a decree for arrears of rent In respect of a holding and purchased the same at the (sic) in execution caused a notice to be served on the mortgagee under sec. 167 of the Bengal Tenancy Act to annul the mortgage. The mortgagee, thereupon, and before the sale had been confirmed, applied to the Munsif under secs. 311 and 244 of the CPC to have the sale set aside on the ground of fraud. 2. The Munsif set aside the sale, and his order was affirmed by the District Judge on appeal. 3. The purchaser now prefers this second appeal and relies upon one ground only, viz., that the service of a notice under sec. 167, Bengal Tenancy Act, annulled the mortgage, and thereafter the Respondent was precluded from questioning the validity of the sale; he being no longer a mortgagee. 4. Apart from the service of notice, the mortgagee undoubtedly could have applied under secs. 311 and 244, C.P.C, to have the sale set aside. 5. There is nothing in sec. 167, Bengal Tenancy Act, expressly precluding a mortgagee after service of notice, from questioning the validity of the sale. 6. The argument adduced for the purchaser is based upon the assumption that the service of a notice alone is sufficient to annul the mortgage, i.e., that upon the application of the mortgagee to have the sale set aside as being void, the purchaser is entitled to say-" It matters not if my purchase is void or not; the notice has been served and therefore your mortgage has been annulled : " in other words, it is contended that a void sale will support a valid notice. 7. But the effect of the service of notice depends fundamentally upon the validity of the sale, and if the sale is void, the notice is also void. 8. It is for the purchaser to show that the mortgage has been annulled; and this he can only do by showing that the requirements of sec. 167 have been fulfilled, i.e., not only that the notice has been served, but that it was issued at the instance of the "purchaser" which connotes a valid sale. The Appellant has to show that he was a purchaser, and the question of the validity of the sale at once becomes an issue between the parties. 9. 167 have been fulfilled, i.e., not only that the notice has been served, but that it was issued at the instance of the "purchaser" which connotes a valid sale. The Appellant has to show that he was a purchaser, and the question of the validity of the sale at once becomes an issue between the parties. 9. Even if service of notice raises a presumption in Appellant's favour that there was a valid sale, the mortgagee is clearly entitled to show that the notice served upon him is void: and the only way in which he could do so in this case was by showing that the sale was void. 10. The case of Petri Lal Roy v. Moheshweri Debi ILR 25 Cal. 551 (1898) to which we have been referred by the learned vakil for the Appellant, merely decides that the service of notice under sec. 167, Bengal Tenancy Act, ipso facto annuls a mortgage. There was no question as to the validity of the sale in that case. 11. It is unnecessary to decide the question whether a purchaser before the confirmation of sale is a purchaser within the meaning of sec. 167, Bengal Tenancy Act, because the sale being void, there is no purchaser at all. 12. For the reasons stated above I think the mortgagee was not precluded from showing that the sale was void. 13. The appeal is accordingly dismissed with costs. Pratt, J. 14. I agree that the appeal should be dismissed for the reason stated in the judgment of my learned brother, but I desire to add a further ground upon which I think the appeal should fail. The Respondent relies upon sec. 316, C.P.C, which provides that so far as regards the parties to the suit and persons claiming through or under them, the title to the property sold shall vest in the purchaser from the date of the confirmation of sale. 15. The inference sought to be drawn is that the purchaser cannot claim to conclusively annul an incumbrance by notice under sec. 167 of the Bengal Tenancy Act until his own title has become complete by confirmation of sale. I think this contention is sound, not only upon the clear terms of see. 15. The inference sought to be drawn is that the purchaser cannot claim to conclusively annul an incumbrance by notice under sec. 167 of the Bengal Tenancy Act until his own title has become complete by confirmation of sale. I think this contention is sound, not only upon the clear terms of see. 316, C.P.C, but also because a different interpretation might result, as in this case, in depriving a mortgagee of his statutory right of contesting the validity of a sale which had been brought about, by fraud. I therefore conclude that the mortgagee was not precluded by the notice under sec. 167 from demanding an adjudication as to the validity of the sale. The appeal fails and is dismissed with costs, two gold mohurs.