Lindsay, Ryves and Daniels, JJ.
1. The main question for decision in this appeal is whether an auction-purchaser under a decree which has been, after confirmation of the sale, set aside as the result of a separate suit, can recover his purchase-money from the decree-holder. If the answer is in the affirmative, as we think it must be, there is a subsidiary question as to whether his remedy is by application under Section 47 or 144 of the Code of Civil Procedure or by a separate suit.
2. The appellant Bindeshri Prasad is the auction-purchaser. The decree under which the sale was held was a, decree for sale on the basis of a mortgage executed in favour of the respondents by one Debi Saran Dhar. Debi Saran Dhaj formed a. joint family with his minor grandson Ram Bujharat. The respondents brought a suit for sale on the basis of their mortgage in the year 1917 impleading Debi Saran Dhar and Ram Bujharat. In this suit they obtained a preliminary decree for sale on the 1st of June, 1917. The decree was made final on the 22nd of January, 1918. The property was put up for sale on the 22nd of April, 1919, and purchased by the appellant for Rs. 660. The appellant was a stranger to the suit. The sale was confirmed under Order XXI, Rule 92, on the 24th of May, 1919.
3. Unfortunately for themselves the respondents made Debi Saran Dhar guardian ad litem of his grandson, thereby debarring the latter from pleading that the mortgage was not for legal necessity. The result was that Ram Bujharat, through another person as next friend, afterwards brought a suit against the respondents decree-holders and the auction-purchaser for a declaration that neither the mortgage, nor the sale decree, nor the, auction sale held thereunder were binding on him. The suit was decreed in his favour on the 14th of August, 1919, in respect of all the three declarations asked for. Armed with this decree. Ram Bujharat was successful in ousting the appellant from possession of the property. On an application under Section 144 of the Code of Civil Procedure in the original mortgage suit possession was restored to him on the 24th of August, 1920. The auction-purchaser then made the present application for refund of the price which he had paid. It was filed as an application under Section 47 of the Code of Civil Procedure in. the original mortgage suit brought by the respondents, but the applicant subsequently asked that if the application was held not to come under Section 47, it should be treated as a separate suit under the provisions of Sub-section (2) of that section.
4. The courts below dismissed the application. Both courts have held that Section 47 is inapplicable, and the lower appellate court has held on the authority of Ram Sarup v. Dalpat Rai (1920) I.L.R. 43 All. 60 that no separate suit to recover the amount could be entertained. We think that the ruling in question is clearly distinguishable. That was a case in which property was sold in execution of a simple money decree. A third party subsequently came forward and claimed that the property which had been sold belonged to him and not to the judgment-debtor. His suit was decreed and the auction-purchaser was deprived of the property. The ruling relies on the principles that there is no warranty of title at an auction sale, and that what was sold was merely the right, title and interest of the judgment-debtor and that the purchaser took the risk that the judgment-debtor's title might turn out to be defective. No, question was ever raised, or could be raised, as to the validity of the decree under which the sale was held. Here the facts are altogether different. Ram Bujharat claimed and obtained a declaration that not merely the sale but the decree and the mortgage on which it was based were void and of no effect as against him. The decree-holders have, therefore, obtained from the auction-purchaser, under an invalid decree, money to which they have no right, and there is a clear equity in favour of the purchaser entitling him to recover it back. It is a well established principle that the auction-purchaser is not bound to look beyond the decree. If a decree is in existence he is entitled to assume that it is a valid decree. This was laid down by the Privy Council in 1886 in Rewa Mahton v. Ram Kishen (1886) L.R. 13 I.A. 106. If the law were otherwise, a purchase at an execution sale would be reduced to the merest gamble. A distinction between a defect in the judgment-debtor's title to the property sold, and the case where there was no jurisdiction to sell the property, is recognized in the well-known, case of Dorab Ally Khan v. Abdool Azeez (1878) L.R. 5 I.A. 116.
5. In a recent case in which a sale was set aside by a separate suit and the judgment-debtors were restored to possession of the property, their Lordships of the Privy Council held that the auction-purchasers were entitled to recover from the judgment-debtors the purchase money which had been paid in satisfaction of debts of the latter. They quoted with approval the judgment of Cairns, L.C., in Rodger v. Comptoir D'Escompte de Paris (1871) L.R. 3 P.C. 465, (475), that one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors, and they pointed out that the auction-purchasers had parted with their purchase-money and paid it into court on the faith of the order of confirmation and certificate of sale, and were entitled to be repaid.
6. It has been argued for the respondents that the decree was not wholly set aside but was only set aside in so far as it affected Ram Bujharat. The result was substantially to set aside the decree altogether. The decree was for sale of joint family property on a mortgage executed by the manager. It being found that the manager had no right to encumber the property, the decree for sale fell wholly-to the-ground, and the successful plaintiff was entitled to recover and did in fact recover the entire property. This argument, therefore, is of no avail to the respondents. The latter have obtained money to which they were not entitled, under a decree and sale which were invalid, and they are bound in equity to restore it to the appellant.
7. The question whether the application comes under Section 47 or 144 of the Code of Civil Procedure is one of some difficulty. The words 'varied or reversed' used in Section 144 seem more applicable to a proceeding by way of appeal, revision or review than to a separate suit declaring that a decree is not binding on a particular party. The Madras High Court has, however, held in Tangatur Subbarayudu v. Yerram Setti Seshasani (1916) I.L.R. 40 Mad. 299 that the section is applicable where a decree is set aside as the result of a subsequent proceeding. If the auction-purchaser can be regarded as the representative of the judgment-debtor, whose interest he purported to acquire, the question is primd facie one coming under Section 47. It is a question relating to the satisfaction of a decree, for it alleges that money has been wrongfully applied in satisfaction of the decree. There is the authority of the Full Bench of the Madras High Court in Veyindramuthu Pillai v. Maya Nadan (1919) I.L.R. 43 Mad. 107 for the view that a stranger purchaser at court auction is entitled and bound to have any question relating to the satisfaction of the decree decided under Section 47. The learned Judges refer to and follow the decision, of the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Calc. 683 which laid down that the courts in India were right in not placing a narrow construction on the language of Section 244 (now Section 47) of the Code of Civil Procedure, and that the fact that a purchaser was interested in the question in dispute had never been held to be a bar to the application of the section. In. the Bombay High Court a contrary view has been taken Narsinbhat bin Chintamanbhat v. Bando Krishna Kulkarni (1918) I.L.R. 42 Bom. 411 but it was admitted that the Bombay view was contrary to the decisions of both the Allahabad and Calcutta High Courts. In a recent Pull Bench of this Court in Sita Ram v. Janki Ram (1922) I.L.R. 44 All. 266 it was suggested, if not definitely held, that even a question between a judgment-debtor and an auction-purchaser, who had failed to deposit the 25 per cent, of the purchase money required by Order XXI, Rule 84, came within the provisions of Section 47. We think, therefore, that we are entitled to treat this application as coming within the provisions of that section. Even if we wore not so satisfied, we should have been prepared to grant the relief asked for, on the analogy of Section 144, in exercise of our inherent power under Section 151 of the Code. There is admittedly no question outstanding between the parties except that which has been decided in this appeal, and to require the question to be now tried out in a regular suit would be merely to put the parties to unnecessary expense.
8. For the reasons already given we allow the appeal and give the appellant a decree for the amount claimed against the respondents decree-holders, with costs in all courts.