Muhammad Rafiq and Walsh, JJ.
1. This is an exceptional and troublesome case. It hag been extremely well argued on both sides and we have come to the decision at which we have arrived after considerable hesitation. Upon the reasoning of the respective Judges in the inferior courts we agree with the first court rather than with the lower appellate court, but on the other hand, we have come to the conclusion that the appeal must be dismissed and the plaintiff's suit decreed upon a ground which has not been satisfactorily dealt with in the lower appellate court.
2. The facts are simple. The property of the defendant judgment-debtor had been attached and an auction sale had taken place and confirmation thereof was pending. Whereupon the plaintiff agreed with the defendant to purchase the property for a stipulated sum in the event of the sale not being confirmed, and the intention probably was, and certainly ought to have been, and the practice should be in such cases, that the defendant or judgment-debtor in depositing the money in court should himself apply as the owner of the property for the auction sale to be set aside, An arrangement of that kind does not make the judgment-debtor at the time being anytheless the owner of the property. Instead, however, of the defendant making the application under Order XXI, Rule 89, the application was made by the plaintiff in his capacity as purchaser subsequent to the auction sale and was properly dismissed upon the authority of Ishir Das v. Asaf Ali Khan (1911) I.L.R. 84 All. 186. The rule provides in express terms that a purchaser applying under that rule must be a purchaser before the auction sale. The result, therefore, was that the sale was confirmed and the money, a substantial sum, Rs. 900, remained deposited in court. The defendant;, as the person who had deposited it, applied to have it paid out to him and it was so paid out. The question then arose as to what should be done with it, and the plaintiff eventually sued the defendant to recover the money. Now the contract to which we have referred was reduced into writing and in substance provided for every contingency except the contingency which has actually occurred, and it provided in very clear and distinct language the conditions under which prima facie the plaintiff was entitled to realize the sale consideration from the defendant) namely, if-any difficulty arose on account of which, he, the plaintiff, did not get possession over the property owing to any act or omission on the part of the defendant. It has not been found in favour of the plaintiff that the sale was confirmed through any act or omission on the part of the defendant nor is there anything in the case to suggest) that that was the fact. It is true that it would have been much better, indeed the application would probably have succeeded, if the defendant had made it instead of the plaintiff. There is nothing to show whose fault this was, and it may be presumed that it was simply an ordinary misunderstanding of the technical position under the Code based upon a very natural belief that a person who has deposited money for the purchase of property is in one sense of the word the owner thereof. This being the case, undoubtedly by English law, upon which a great deal if not most of the contract law in India is based, the action would be bound to fail. An English lawyer would be compelled to hold that as the contract provided an express condition under which this money could be recovered back from the defendant, the plaintiff and any court before whom it came, would be prohibited by the rules of interpretation from imposing an additional condition which the parties had not chosen to provide in the contract. We think that the law in this matter in particular, as has been pointed out more than once by English lawyers, is not in India precisely the same as in England, Our decision really turns upon the provisions of Section 60 of the Indian Contract Act which lays down that when a contract becomes void any person who has received any advantage under such agreement or contract is bound to restore it to the person from whom he received it. That lays down a proposition much wider than anything which is to be found in English law. In fact there are many English decided cases to the contrary. It does not remove the whole of the plaintiff's difficulty, because the question still remains whether in fact the contract in this case has not made an express provision inconsistent with the stipulation contained in Section 65, On the whole, we have come to the conclusion that the contract is not inconsistent with that section. It has to be borne in mind that contracts in this country are not made as a general rule by trained professional lawyers with the same attempt at scientific precision which prevails among English solicitors, and we have come to the conclusion that the parties to this somewhat inartistic document thought it unnecessary to provide for a contingency against which express provision had already been made by the codified law in India. The contract is silent as to what is to happen if the sale was confirmed. It is quite clear that if there had been no contract at all, then the plaintiff would be entitled to recover by the express provisions of Section 65, and we think, having regard to all the circumstances in the case and the conduct of the parties, the contract must be treated as having expressly omitted to provide for that contingency which was, in the first place, never contemplated, and in the second place, was already provided for by the law. The lower appellate court in dealing with this aspect of the matter, held that the contract, if void, offended against Section 23, in other words, against public policy. We cannot take this view of the matter. There is nothing to justify that view in the decision in Iskar Das v. Asaf Ali Khan (1911) I.L.R. 31 All. 186, and the real purpose and intention of Order XXI, Rule 89, is contained in a very clear statement in the judgment of Mr. Justice BatChelor in Pandurang Laxman Uphade v. Govind Dada Uphade (1914) I.L.R. 40 Bom. 557, where it is pointed out, as was pointed out, by my brother Mr. Justice Rafiq, in the argument in this case, ' that the object of the Legislature apparently was not merely or specifically to preserve the immovable property in the hands of the judgment-debtor, but to ensure, so far as may be possible, that immovable properties shall not at court sales be sold at inadequate prices... but that the court will be realizing the intentions of the Legislature if it construes these provisions so as to ensure that the monetary loss accruing to the judgment-debtor be as little as possible.' This view of the matter has exercised considerable influence upon our judgment in this case. So far from these contracts being- against public policy, they are really in the interests of judgment-debtors alone with a view if possible at the eleventh hour to rescue the property from a forced sale at an under-value, and the view which the defendant presses upon us that we ought to take of this contract must, if accepted by us, have the effect of very much discouraging other persons coming to the rescue of the judgment-debtor and putting down money to be deposited in court to prevent the confirmation of the auction sale, if they are to do so at the risk of losing their money entirely in the event of some unforeseen accident making the contract impossible of completion. The result of the view taken of this case by the first court would really be contrary to natural justice. It is satisfactory to find that the law as codified enables us in this case to do what we feel satisfied is really substantial justice. The result is that the appeal must be dismissed and we accordingly dismiss it with costs.