1. The appellant before us was the plaintiff in the suit, and was the purchaser of the property in suit at a Court sale held at the instance of the decree-holder, the fifth defendant. The original owner of the property was one Vithu Shivram. After his death, a claim to his property was made by the defendants Nos. 1 to 4 as being beneficiaries under Vithu's Will. Now the defendant No. 5 was a creditor of Vithu, and in 1902 after Vithu's death, he brought a suit against defendant Nos. 1 to 4 as representing Vithu's estate for the recovery of the moneys due to him by that estate. He obtained a decree and thereafter had this property attached and put to sale.
2. In March 1905 at the auction-sale, the appellant purchased the property. On the 3rd of July 1905, the sale was confirmed, and under the sale-certificate, the appellant applied for possession. In his attempt to obtain possession, however, he was obstructed by the sixth defendant who claimed to be the heir of Vithu. The appellant made an application for the removal of the sixth defendant's obstruction, but that application was decided against the appellant, who, therefore, filed the present suit.
3. Now the appellant claims as the bona fide purchaser at the Court sale. In the alternative, he claims also that, if the Court finds that the defendants Nos. 1 to 4 had no interest in Vithu's property, he, the appellant, should be recouped by the 5th defendant the money, about Rs. 1,100, which the appellant paid to the 5th defendant for the property.
4. In the trial Court, the appellant obtained a decree for possession. The sixth defendant appealed, making respondents in his appeal the present appellant and the decree-holder, the fifth defendant. In the appeal, the District Judge has come to the conclusion that the decree was not properly obtained against Vithal's estate, inasmuch as the real heir to that estate was the sixth defendant. He has, therefore, determined that the appellant took no interest by his purchase at the Court-sale. But the learned Judge has declined to order the fifth defendant to refund to the appellant the money paid by the latter.
5. Upon the first point as to the effect of the appellant's purchase at the Court-sale, we agree with the District Judge. It is quite clear that no Court has any authority or jurisdiction to sell A.'s property for a debt due by B. That is what was done here, and the decree is clearly a nullity. The estate of Vithu was not represented, inasmuch as the defendants Nos. 1 to 4 could not represent it, and defendant No. 6, who, on the findings, could alone represent it, was not made a party. It is, we think, obvious that no title could pass by virtue of a sale following upon such a decree as this. Indeed Mr. Nadkarni has not pressed this point, but has relied solely upon his second ground of contention, that is to say, his claim that the fifth defendant should in these proceedings be ordered to refund to his client the money which his client paid for the property. We think that an order to that effect should be made in the appellant's favour. Authority for such an order may, we think, be found in Order XLI, Rule 33, of the present Code and in Nityanund Roy v. Juggat Chandra Guha 7 C.W.N. 105. The question whether the appellant was entitled to this refund was distinctly raised in the fourth issue before the trial Court, and if the decree-holder chose to give no evidence upon this point, he cannot now be heard to urge that he should be given a fresh opportunity for repairing that neglect. We have before us all the facts which are necessary for the purpose of making an order. We have it that at this moment the appellant's money is in the pocket of the fifth defendant, and that the fifth defendant has no justification or excuse for keeping it there.
6. That being so, in Second Appeal No. 837 of 1909, we vary the decree of the Court below by the addition of an order directing that the fifth defendant do re-pay to the plaintiff-appellant the money which the plaintiff paid at the Court-sale for the property. The sum must be paid with interest at 6 per cant. from the date of the plaintiff's payment to the date of re-payment by the decree-holder. The appellant must pay the costs of the first respondent, but in other respects the appellant will get his costs from the fifth defendant.
7. For the same reasons, Second Appeal No. 838 of 1909 is dismissed with costs. There will be separate sets.