Basil Scott, Kt., C.J.
1. The plaintiff sues as the purchaser at a Court-sale of the interest of two judgment-debtors Shapurji and Pestonji in a certain land and bungalow under a trust-deed of Hormasji Sorabji, dated the 23rd of December 1893. His cause of action as alleged in the plaint is the discovery that neither of the judgment-debtors, whose interest the Court purported to sell, had any saleable interest in the property. The relief which he prayed for was, possession of the property described in the plaint, or, in the alternative, return of the purchase-money on the footing of a total failure of a consideration.
2. His claim succeeded as regards the return of the purchase -money in the first Court, but in the lower appellate Court his suit was dismissed.
3. A preliminary objection has been taken that as the amount decreed in respect of purchase-money and interest in the first Court amounted to less than Rs. 500, this was a matter which could not be the subject of a second appeal.
4. This argument ignores the fact that the claim was not only for money, but also for possession, and therefore the suit was not as framed cognizable by a Court of Small Causes.
5. The failure of consideration upon which the plaintiff relies arises as regards the judgment-debtor Shapurji from the fact that the whole of his interest had already been sold in execution of a previous decree against him, and also from the fact that a trust-deed under which it was alleged that he had an interest was not stamped.
6. This latter objection also applied to the interest of the judgment-debtor Pestonji. %
7. The Subordinate Judge held that in the absence of proof of the trust-deed upon which depended the existence of the alleged interest of the judgment-debtors, it must be assumed that the judgment-debtors had no interest in the property, the subject of the sale.
8. The lower appellate Court, however, took the view that the document not being shown to be invalid for want of registration but merely for want of stamp, it would presumably be admissible as soon as it was properly stamped and that the purchaser by paying the stamp duty might sue upon it.
9. We think that in coming to this conclusion the lower appelate Court was in error. Section 35 of the Stamp Act provides that no instrument chargeable with duty shall be admitted in evidence for any purpose unless such an instrument is duly stamped.
10. As the document cannot be admitted in evidence it must in this suit be taken to be non-existent, for, as was observed by Lord Halsbury in Seaton v. Burnand (1900) A.C. 135, ' of things that do not appear and things that do not exist the reckoning in a Court of law is the same.' We assume, therefore, as did the learned Subordinate Judge, that the plaintiff has made out his allegation that there is no trust-deed before the Court under which the judgment-debtor can be said to have any interest.
11. It is then objected by the respondents that such a suit as the present will not lie; that there is no provision in the Civil Procedure Code enabling a purchaser to maintain such a suit; and that, apart from the Civil Procedure Code, as shown by the decision of the Privy Council in Dorab Ally Khan v. Abdool Azeez , no suit will be maintainable.
12. We think, however, that the right of the plaintiff to maintain the suit is made clear by the provisions of the Civil Procedure Code in the manner indicated in Sundara Gopalan v. Venkatavarada Ayyangar ILR (1898) Mad. 228. Under the Civil Procedure Code an implied warranty of some saleable interest when the right, title and interest of a judgment-debtor is put up for sale is implied, and the purchaser's right based thereon to a return under certain conditions of the purchase-money which has been received by the judgment-creditor is recognized. The liability of the judgment-creditor under the circumstances to refund the purchase-money which has been paid to him at a Court-sale being thus established, there can be no objection to treating the relations of the parties, namely, the judgment-creditor and the Court-sale purchaser, as relations, in the nature of contract. This appears to have been done in the case of Mahomed Kala Mea v. Herperink (1908) L.R. 36 IndAp 32, where a suit brought by an auction-purchaser at a Court-sale against execution creditors and the judgment-debtor, succeeded on the ground of misrepresentation on the part of the auctioneer, amounting to misrepresentation as defined by Section 18, Clause (3), of the Indian Contract Act, 1872.
13. In the present case upon the facts found we have a similar misrepresentation. The purchaser has been caused, however innocently, to make a mistake as to the substance of the thing which was the subject of the sale. He was led to believe that he was purchasing a right under a trust-deed, whereas, so far as it appears from the facts proved, no trust-deed was in existence. There has, therefore, been an entire failure of consideration. The money, it is not disputed, has come into the hands of the judgment-creditor and the first Court made a decree for its return with interest.
14. An objection is taken in appeal that the suit is barred by limitation, but we have no facts before us to enable us to decide that point in favour of the respondents. For, although the sale took place in the year 1900, it was not confirmed until the 3rd of November 1902, and although long prior to that date the purchase-money had been paid into Court no order was made that it should be paid to the decree-holders until the 3rd of February 1902. The respondents are unable to tell us when the decree-holders received the purchase-money. We, therefore, cannot tell at what date they received the money to the use of the plaintiff, and we cannot say that the suit is barred by Article 62 which appears to be the Article which would be applicable to the case.
15. We, therefore, reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs throughout.