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Ram Sarup Vs. Dalpat Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1921All377; (1921)ILR43All60
AppellantRam Sarup
RespondentDalpat Rai and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 91 and 93 - execution of decree--auction purchaser deprived of property purchased--suit for refund of purchase money--sale not set aside. - - 1. this is a plaintiff's appeal arising out of a suit brought by an auction purchaser for recovery of the purchase money paid by him, and taken away by the decree-bolder, as well as for the surplus sale proceeds still in deposit in court, on the ground that the judgment-debtor had no saleable interest in the property sold at all. 828. while, therefore, the code of 1859 was in force, the courts did not recognize any independent rule of equity, justice or good conscience under which an auction purchaser could recover his purchase money if it turned out that the judgment-debtor had no saleable.....sulaiman, j.1. this is a plaintiff's appeal arising out of a suit brought by an auction purchaser for recovery of the purchase money paid by him, and taken away by the decree-bolder, as well as for the surplus sale proceeds still in deposit in court, on the ground that the judgment-debtor had no saleable interest in the property sold at all. it appears that dalpat rai and basant rai, who are now represented by defendants nos. 2 to 6, held a simple money decree against one durga prasad for a sum of rs. 1,206 and odd. in execution of that decree certain property was attached as belonging to the judgment-debtor and put up for sale and purchased by the present plaintiff appellant. the appellant paid the purchase money and the sale was confirmed on the 27th of july, 1911. one jawahir lal.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit brought by an auction purchaser for recovery of the purchase money paid by him, and taken away by the decree-bolder, as well as for the surplus sale proceeds still in deposit in court, on the ground that the judgment-debtor had no saleable interest in the property sold at all. It appears that Dalpat Rai and Basant Rai, who are now represented by defendants Nos. 2 to 6, held a simple money decree against one Durga Prasad for a sum of Rs. 1,206 and odd. In execution of that decree certain property was attached as belonging to the judgment-debtor and put up for sale and purchased by the present plaintiff appellant. The appellant paid the purchase money and the sale was confirmed on the 27th of July, 1911. One Jawahir Lal brought a suit for a declaration of his own title and for setting aside the sale against the decree-holders, the judgment-debtor and the auction purchaser. This suit was decreed on the 1st of December, 1911. The decree-holders took out part of the sale proceeds deposited in court in satisfaction of their decree, leaving a sum of Rs. 617-12-8 as the surplus sale proceeds. In 1917, the present suit was filed for recovery of the purchase money on the ground that the judgment-debtor had no saleable interest in the property at all. The court of first instance decreed the suit with respect to the amount which was still in deposit in court, but dismissed it as against the decree-holders. The plaintiff appealed to the court of the District Judge and the defendants filed cross-objections. The learned Judge affirmed the decree of the court of first instance, holding that the suit was not maintainable. The defendants have submitted to the decree. The plaintiff has come up to this Court in second appeal. On his behalf it is contended that he is in equity entitled to recover the amount paid by him when he is not able to retain the property, and that legally there is no bar to such a claim.

2. As the appeal raises an important question of law, it is necessary to consider it at some length. Under Section 258 of Act VIII of 1859 it was provided that 'whenever a sale of immovable property is set aside, the purchaser shall be entitled to receive back his purchase money, with or without interest, in such manner as it may appear proper to the court to direct in each instance.' It is clear that, although under that Code there was an express provision entitling the auction purchaser to receive back his purchase money in case the sale was set aside, there was no such provision in the case where the sale had not been set aside, even though it were found that the judgment-debtor had no saleable interest in the property at all. Again the Code did not expressly specify the manner in which the right to recover this money could be enforced. It was open to the court to direct the auction purchaser to recover his money by an application in that court or by a separate regular suits, The rulings under this Code seem to have recognized as an established principle of law that a purchaser at a sale in execution of a decree could not recover his purchase money if it turned out that the judgment-debtor had no saleable interest in the property put up for sale, and that Section 258 solely applied to those cases in which the sale had been set aside for irregularity in publishing and conducting it; vide, Sowdamini Chowdhrain v. Krishna Kishor (1869) 4 B.L.R. 11 (where the sale had taken place even prior to the Act), Hira Lal v. Karim-un-nisa (1880) I.L.R. 2 All. 780, and Ram Narain Singh v. Mahtab Bibi (1880) I.L.R. 2 All. 828. While, therefore, the Code of 1859 was in force, the courts did not recognize any independent rule of equity, justice or good conscience under which an auction purchaser could recover his purchase money if it turned out that the judgment-debtor had no saleable interest at all. The case of Dorab Ally Khan v. Ahdool Azeez (1878) L.R. 5 I.A. 116 requires special consideration, because the learned advocate for the appellant places great reliance on it and has urged that the full significance of this case has not been appreciated on subsequent rulings. His contention is that it has not been clearly borne in. mind that the Privy Council did ultimately remand the case for the trial of the question whether the auction purchaser's representative had shown a case which, if proved, would entitle him to recover back the purchase money, 'as money had and received to his use as upon a total failure of consideration.' In that case, in execution of a simple money decree certain property belonging to a judgment-debtor, situated in Oudh, had been seized by the Calcutta Sheriff at the instance of the decree-holder and put up for sale and sold. Subsequently the judgment-debtor in some proceedings in the Oudh Courts obtained a decree declaring that the sale was null and void. On this the auction purchaser's representative brought a suit against the decree-holder for the recovery of the purchase money paid by him. The question in that case was not whether the auction purchaser was entitled to receive back his purchase money if it was found that the judgment-debtor had no saleable interest in the property at all, but the question was whether he was entitled to recover the money if it was found that the Sheriff had no jurisdiction to sell the property, although the property did in fact belong to the judgment debtor. In 5 Indian Appeals on page 124, the question for consideration is stated to be as follows: 'The question then arises, can the purchaser at a sale by the Sheriff under a writ of fi. fa., upon being evicted by the execution debtor, recover the purchase money which he has paid from the execution creditor, if it should turn out that the Sheriff had no authority to execute the writ at the place where the property was situate.' The High Court of Calcutta (vide I.L.R., 1 Calc., 55), had assumed that if the defendant was to be treated as a principal in the transaction, the case was governed by the ordinary rules relating to vendors and purchasers upon voluntary sales, and had applied the rule that a purchaser, who, after the execution of the conveyance, is evicted by a title to which the covenants in the conveyance do not extend, cannot recover the purchase money from his vendors. Their Lordships of the Privy Council held that that rule which governed sales by private contracts was not properly applicable to sale by the Sheriff. At the same time, on page 126, their Lordships remarked: 'Now it is, of course, perfectly clear that when the property has been so sold under a regular execution, and the purchaser is afterwards evicted under a title paramount to that of the judgment-debtor, he has no remedy against either the Sheriff or the judgment-creditor. This, however, is because the Sheriff is authorized by the writ to seize the property of the execution debtor which lies within territorial jurisdiction and to pass t he debtor's title to it without warranting that title to be good. The Sheriff, however, if he acts ultra vires, cannot, invoke the protection which the law gives to him when acting within his jurisdiction.' That the decision of that case turned on the absence of jurisdiction in the Sheriff to sell the property is further borne out by the remarks on page 127 that 'their Lordships think that upon similar principles the Sheriff maybe held to undertake by his conduct that he has seized and put up for sale the property sold in the exercise of his jurisdiction, although when he has jurisdiction he does not in any was warrant that the judgment-debtor had a good title to it, or guarantee that the purchaser shall not be turned out of possession by some person other than the judgment-debtor. In the present case the subject matter of the sale was the estate of the execution debtor, so that if the Sheriff' had had jurisdiction, his conveyance would have passed the title. It was solely because he was acting beyond his territorial jurisdiction that the sale became inoperative and wholly ineffectual.' As the case had not been approached by the courts below from the correct point of view, their Lordships felt that the action could not be determined without further investigation into the facts. It is true that in the concluding portion of the judgment their Lordships say: 'They only decide that the plaintiff has not wholly failed to disclose a good cause of action on the face of the record'; but their Lordships also say that they' of course, offer no opinion whether the plaintiff will ultimately succeed in establishing his right to any relief.' The distinguishing feature of that case is that there, at the instance of the decree-holder, the Sheriff had tried to sell property situated outside his jurisdiction, and in this he was 'in the position of an ordinary person who has sold that which he had no title to-sell.' In my opinion this case is no authority for the proposition that, independently of any provision of the Code, an auction purchaser has a right to recover his purchase money by a regular suit when it is found that the judgment-debtor had no saleable interest at all, though the property is situated within the jurisdiction of the execution court.

3. Act X of 1877 and the consolidating Act XIV of 1882 introduced material alterations in the Code. Section 315 of Act XIV of 1882 provided two things:

(1) It gave the purchaser a right to receive back his purchase money from any person to whom the purchase money had been paid, in cafe the sale was set aside under Section 312 or 313; and

(2) It also gave him such right when, although the sale was not set aside, it was found that the judgment-debtor had no saleable interest in the property which purported to be sold and the purchaser was for that reason deprived of it. The section then went on to provide that the repayment of the said purchase money might be enforced against the person to whom it had been paid under the rules provided by the Code for the execution of a decree of money.

4. A controversy naturally arose as to whether the auction-purchaser's remedy was limited to an application in the execution department or whether he could maintain a separate suit. The controversy was set at rest by a decision of the Full Bench of this Court reported in Munna Singh v. Gajadhar Singh (1883) I.L.R. 5 All. 577, where it was clearly laid down that there was no bar to a separate suit. The learned advocate for the applicant has strongly contended that this Full Bench case recognizes a rule of equity, independently of the provisions of any Code, that a separate suit is maintainable. In my opinion the judgments of all the Judges who decided that case proceeded on the assumption that aright to recover the purchase money was given to the auction purchaser by Section 315 of the Code, and I do not find any passage which would support the contention that they decided that there was a right to recover the money independently of the provisions of that section. On the other hand, the judgment of Stuart, C.J., on page 582, makes it quite clear that the case was held to be governed by third clause of Section 315. That case has of course been followed by this Court in subsequent cases; vide Kishun Lal v. Muhammad Safdar Ali Khan (1891) I.L.R. 13 All. 383, Shanto Chandar Mukerji v. Nam Sukh (1901) I.L.R. 23 All. 355 and Sidheswari Prasad Narain Singh v. Goshain Mayanand (1913) I.L.R. 35 All. 419, in which it was clearly held that outside the provisions of the Code of Civil Procedure an auction purchaser had no right to recover back his purchase money merely by showing that the judgment-debtor had no saleable interest.

5. The provisions of Act V of 1908 differ from those of Act XIV of 1882. In the first place, the provision of Section 315 to the effect that when it is found that the judgment-debtor has no saleable interest in the property which is purported to be sold, and the purchaser is for that reason deprived of it, the purchaser shall be entitled to receive back his purchase money, does not find a place in Order XXI, Rule 93; and in the next place the expression 'shall be entitled to receive back his purchase money' has been replaced by the words 'shall be entitled to an order for repayment of his purchase money.' In my opinion these are material alterations which cannot be ignored If no right existed independently of the provisions of Section 315 of the Code of 1882, entitling an auction purchaser to receive back his purchase money by a regular suit in case the judgment-debtor had no saleable interest, then it is clear that no such right is recognized by Order XXI, Rule 93; the only remedy provided by that rule is for the action purchaser to apply for an order for repayment of the purchase money in case the sale has been set aside by the court. In my opinion Section 315 of the old Code had given a substantive right to an auction purchaser to bring a separate suit. That right has not been granted by Order XXI, Rule 93. As had been held in the cases decided before Act XIV of 1882 came into force, there was no independent right under which an auction purchaser could receive back the purchase money on the ground that the judgment-debtor had no saleable interest in the property, apart from the express provisions of the Code of Civil Procedure. There is no such provision in the present Code; on the other hand, Order XXI, Rule 92(3), rather shows that no suit to set aside an order confirming a sale can be brought by any person against whom such order is made. The prohibition against a regular suit contained in the last clause of Section 312 of Act XIV of 1882 was very limited in scope. The section provided that 'no suit to set aside, on the ground of such irregularity, an order passed under this section shall be brought by the party against whom such order has been made 'Whereas the third clause of Order XXI, Rule 92, of the present Code is very general in its terms, and the expression 'on the ground of such irregularity' is not to be found there. This seems to indicate that no separate suit challenging the order of confirmation can bv brought on any ground whatsoever.

6. There is, as has already been observed, a clear distinction between auction sales and private sales. In the case of a private sale which is the result of a private contract between the parties concerned there is either an express or implied warranty of title. If it subsequently turns out that the property transferred did not belong to the vendor, the vendee is in equity and justice entitled to get back his sale consideration. In an auction sale, however, which takes place against the will of the judgment-debtor, there could possibly be no warranty of title on behalf of the judgment-debtor. Nor does the decree-holder, through the sale officer, give any guarantee; he merely puts up for sale the rights and interest which the judgment-debtor might possess in the property. The auction purchaser who purchases the property, therefore, takes a risk, and if it turns out that the judgment-debtor really has no interest in the property sought to be sold, it is the misfortune of the auction purchaser. Unless there be a special remedy provided for compensation, I fail to discover 'any rule of equity which would entitle him to get back his money. I can conceive of many difficulties which might arise if such a right is recognized independently of any express provision of law. It might be after a very long period that it is discovered that the judgment-debtor has no saleable interest at all. The sale proceeds might be distributed among a number of decree-holders and it might be very hard on the decree-holders to be called upon to refund the amount after several years. Again, if there be a rule of equity under which an auction purchaser can recover his purchase money in case it is found that the judgment-debtor had no saleable interest at all, why should he not also recover a proportionate amount when he has a smaller interest than what purported to be sold? In Mohideen Imbrahim v. Mahomed Mura Levai : (1912)23MLJ487 , Napier J., came to the conclusion that under the new Code of Civil Procedure there was no provision entitling an auction purchaser to receive back his purchase money in a regular suit, though it is true that Ayling J., was a little doubtful on the point and considered it unnecessary to express an opinion on it. In the case of Kumar Shaha Peddar v. Ram Gour Shaha Chaudhri (1909) I.L.R. 37 Calc. 67, the Calcutta High Court was of the same opinion and pointed out that before the passing of Act XIV of 1882 no such right was recognized, as is manifest from the decision in Dorab Ally Khan v. Abdool Azeez (1878) L.R. 51 A. 116, and that it was only under the provisions of Section 185 of Act XIV of 1882 that a right to bring a suit was recognized.

7. In Muhammad Najib-ullah v. Jai Narain (1914) I.L.R. 36 All. 559 a Division Bench of this Court seems to have doubted the soundness of the decision in Munna Singh v. Gajadhar Singh (1916) I.L.R. 39 All. 114 and felt inclined to refer the point to a Full Bench. But before doing so they thought it desirable to refer an issue as to the interest of the judgment-debtor at the time of the sale. In Nannu Lal v. Bhagwan Das (1916) I.L.R. 39 All. 114 the point raised in this appeal was clearly decided against the appellant. That case is on all fours with the present case and I am in perfect accord with the reasoning of the learned Chief Justice who delivered the judgment in that case. The provisions of Act V of 1905 do not recognize the right of an auction purchaser to maintain a suit for the recovery of the purchase money or to get the sale set aside, His right is limited to an application for an order for repayment of the purchase money after the sale has been set aside. In my opinion, therefore, the finding of the learned District Judge that the suit was not maintainable is correct.

8. On behalf of the respondent it was further urged that on the face of it the suit was barred by limitation because the decree declaring the sale to have been null and void was passed on the 1st of December, 1911, and the suit was brought more than three years after it. It is contended that either Article 97 or Article 62 of the Limitation Act applies to this case and the suit is barred by the three years' rule. There may be difficulty in holding that either Article 97 or Article 62 applies. If neither of these articles applies, then the general Article 120 would apply. However, in view of my opinion as to the non-maintainability of the suit, I consider it quite unnecessary to decide this point. I would, therefore, dismiss the appeal.

Gokul Prasad, J.

9. I agree in the conclusion arrived at by my learned colleague. As the point raised is, however, of some importance I would like to add a few observations.

10. The question which arises in this case, put shortly, comes to this. In a case where it is found that the proper by sold by auction in execution of a decree does not belong to a judgment-debtor, is it open to au auction purchaser to bring a suit, independently of the provisions of the Code of Civil Procedure, to enforce a claim for refund of the purchase money on the ground, either of failure of consideration, or of a rule of equity that where a party has parted with a sum of money and has not had the full benefit of it, the person who has had the benefit of that money is bound to refund it? The question is not an easy one to answer, and the difficulty has been made still greater by the fact that in order to see that an auction purchaser is not prejudiced, there have been attempts by the Legislature to safeguard his rights to a certain extent. Most of the cases cited at the Bar have dealt with the special provisions of the Codes which governed the auction purchases under consideration. But the question really which has to be decided in the present suit is, it being admitted or being beyond dispute that the present Code of Civil Procedure reognizes no such general right except to the extent to which it is limited under Order XXI, Rule 93, of the Code of Civil Procedure, which admittedly does not apply to the present case, does a suit lie independently of those provisions? In order to understand the position clearly it will be necessary to trace to some extent the history of the various pieces of legislation relating to this subject. The first in point of time which, so far as India is concerned, dealt with this subject is Regulation VII of 1825. The 7th clause of the 3rd section of that Regulation provided 'In all cases of public sale of property under this Regulation, it shall be clearly explained to the bidders at the sale, that nothing is guaranteed to them in the land or other property sold, beyond the rights and interests therein of the individuals answerable for the amount of the decree, or other process, in execution of which the sale is made,' Or, in other words, the only guarantee which attended the auction sales was a guarantee that the judgment-debtor or those who claim through him would not recover back the property. This Regulation was apparently founded on the rule of English Law that there is no warranty of title in auction sales except in so far that the court's jurisdiction to sell the property is assured ; see Dorab Ally Khan v. Abdool Azeez (1878) L.R. 5 I.A. 116 (128). There is no guarantee ' that the judgment-debtor had a good title to the property or a guarantee that the purchaser shall not be turned out of possession by some person other than the judgment debtor.' This was the rule enforced before the pissing of Act VIII of 1859. The case of Sowdamini Chowdhrain v. Krishna Kishor Poddar (1869) 4 B.L.R. 11 (F.B.), decided by a Full Bench of the Calcutta High Court, very well expresses the principle underlying such sales. The sale in that case took place in the year 1854, and the Judges there were considering the question as to whether the auction purchaser could have any right to a refund of the purchase money in case it was subsequently discovered that the judgment-debtor had no saleable interest in the property The judgment was delivered by Peacock, C.J, and, after quoting the well known passage from Sugden on Vendors and Purchasers which has also been referred to in the judgment of the Privy Council in the case of Dorab Ally Khan v. Abdool Azeez (1878) L.R. 5 I.A. 116 (128), the learned Judge proceeded to observe as follows: 'There is a great distinction between the case of a purchaser being evicted by title paramount, and that of the conveyance by the vendors being set aside. In the one case the owner of the land recovers notwithstanding the conveyance, because it was a conveyance of his land by a person who had no right to convey it; in the other case, where a sale has been set aside, the purchaser usually has a right to recover back his purchase money, because it would be inequitable that the vendor should retain the purchase money when there are grounds for setting aside the sale by which the contract is put an end to. But a Court of Equity does not set aside a conveyance simply because the conveying party had no title to the property. There must be something more, such as fraud or the like, to induce the court to interfere in that manner. A purchaser at a sale in execution knows that all that he purchases is the right and title of the judgment-debtor. He knows that no one guarantees to him that the judgment-debtor has a good title, and he purchases the property with his eyes open and regulates the price which he bids for the land with reference to the circumstances under which he is purchasing, and the risk he runs.' In the absence of any express legislation, e.g., Acts of 1859, 1877 and 1882, this principle would seem to regulate the right of an auction purchaser so far as his right to a refund of the purchase money is concerned. The oldest case on the subject which I have been able to discover is a Full Bench decision of the Calcutta Suddar Court, Dost Mahomed Khan v. Prosunnonath Roy (1885) S.D.A. (L.P.) 549. The decision is not reported in full, but the principle laid down is that 'a purchaser at a sale in satisfaction of a decree, of a party's rights and interests, is not entitled to the recovery of his purchase money, on the rights and interests sold turning out to be without title.' Another case is Raghoonath Suhay v. Brijbeharee Lal (1857) S.D.A. (L.P.) 486. In that case the auction sale was set aside in a regular suit and their Lordships came to the same conclusion It was perhaps to remove the hardships thus entailed upon an auction purchaser that Section 258 of Act VIII of 1859 was enacted.

11. Questions arose about the interpretation of this section and in some of them it was held that the right given under this section was an absolute right; see Greesh Chunder Pottar v. Lookhooda Moyee Dabee (1864) 1 W.R. C.R. 55 and Brojendur Roy Chowdhry v. Jugurnath Roy (1866) 6 W.R. C.R. 147.

12. Later on, when Act X of 1877 was passed, it was enacted in Section 315 that 'when it is found that the judgment-debtor had no saleable interest in the property which purported to be sold, and the purchaser is for that reason deprived of it, the purchaser shall be entitled to receive back his purchase money (with or without interest as the court may direct) from any person to whom the purchase money has been paid, etc.' This was the first occasion on which the right of an auction purchaser to a refund' of the purchase money, simply on the ground of > discovery that the judgment-debtor had no saleable interest in the property, was recognized. The same was the effect of the amending and consolidating enactment of Act XIV of 1882. Most of the cases which have been cited to us were cases in which the existence of this right to a refund was admitted, but the only question was whether the remedy lay by certain proceedings by way of an application or there was also a remedy by a separate suit. This Court consistently held that the remedy provided by Section 258 of Act VIII of 1859 or Section 315 of Acts of 1877 and 1882 was only permissive, or in other words it was not the only remedy open to an auction purchaser, but he could enforce the right given to him by the above sections by a separate suit also. It was held by this High Court that the section was only permissive and that an auction purchaser had a right of suit. None of the older cases touched or could touch upon the point now raised before us, namely, whether independently of the enactment in the Code of Civil Procedure there was any right of suit; because in all those cases the attention of the courts was directed to the special provisions of the enactment then under consideration. The only cases in which these principles have been touched upon are the following: Sheikh Mahomed Basir-ulla v. Sheikh Abdulla (1870) 4 B.L.R. (App.) 35, Shanto Chandar Mukerji v. Nain Sukh (1901) I.L.R. 23 All. 355, Sidheshwiri Prasad Narain Singh v. Goshain Mayanand (1913) I.L.R. 35 All. 419 and Dorab Ally Khan v. Abdool Azees (1878) L.R. 5 I.A. 116. The present Code of Civil Procedure, Act V of 1908, has departed from the enactments of 1877 and 1882 in this respect, that in this Act the provision regarding the right of an auction purchaser to a refund of his purchase money on the ground that the judgment-debtor had no saleable interest in it, has been omitted. Dr. Tej Bahadur Sapru, on behalf of the appellant, has strongly relied upon the ruling in Munna Singh v. Gajadhar Singh (1883) I.L.R. 5 All. 577, and has contended that the said case supports his contention to the full. He has argued that the case has laid down in clear and unambiguous language that the auction purchaser had a right of suit where it was discovered subsequently that the judgment-debtor had no saleable interest in the property. But we must bear in mind that all through that case it was not contested that such a right did exist in the auction purchaser. The whole contest was centred round the question whether the remedy of the auction purchaser was by a separate suit or by way of proceedings in execution. That case, therefore, does not support the contention so well put forward and so strenuously urged. He has tried to distinguish the case in 5 Indian Appeals on the ground that, although their Lordships in one part of the judgment held that there was no warranty of title in auction sales and therefore an auction purchaser had no right to a refund of the purchase money, still, further on, about the close of the judgment, they remand the case for trial on the merits. But we must bear in mind that the circumstances of that case were somewhat peculiar. The sale of certain property outside his jurisdiction was made by the Sheriff. There was a further question if the auction purchaser knew that the Sheriff was acting ultra vires in selling property beyond the local limits of his own jurisdiction, and, thirdly, there was a question as to the amount realized and appropriated by the auction purchaser which might have to be set off against the purchase money, in case the court came to the conclusion that he was entitled to the latter. Their Lordships of the Privy Council considered, first of all, the position of sales at auction conducted by the Sheriff who had jurisdiction to sell the property, and came to the conclusion that, if that had been the case, there would have been no question that the auction purchaser had no right to a refund of the purchase money, but they went on to hold that as the Sheriff had acted beyond his jurisdiction therefore the following considerations might prevail. First, whether the auction purchaser purchased the property with full knowledge that he was purchasing some thing which the Sheriff had no right to sell, If this fact was found against the auction purchaser perhaps the suit might fail, but none the less it was a fact which was to be found one way or the other, and in case it turned out that the auction purchaser had no intimation of the defect in the proceedings taken by the Sheriff, the further question that might arise would be as to the amount which he would be entitled to get the refund of; and it was only for the consideration of these latter points that the case was sent back to the High Court, so that these last observations did in no way detract from the meaning of the previous pronouncement. That this is the meaning of their Lordships of the Privy Council is also evident from the views taken by the various High Courts in India in a large number of cases in which this case, as the leading case on the subject, has very often been discussed and referred to. As an example I might mention the case of Shanto Chandar Mukerji v. Nain Sukh (1901) I.L.R. 23 All. 355 (356, 357) decided by this Court. We have also to bear in mind the fact that in cases where it has been found that the judgment-debtor had only a smaller interest in the property sold, compared to what was purported to be sold, the courts had never allowed the auction purchaser a proportionate refund, which they would have done if there had been some principle of equity, justice and good conscience which enabled the auction purchaser to claim a refund. Apart altogether from the provisions of the Codes of Civil Procedure of 1877 and 1882, which would have entitled the auction purchaser to a refund of the full amount of the purchase money, in case it was found that the judgment-debtor had no title whatever, there could have been no warrant for holding that if the interest which the judgment-debtor really had in the property was smaller than what was sold a proportionate reduction in the purchase money should not have been refunded to the auction purchaser. There is thus no doubt whatever that there is no principle of equity or law according to which an auction purchaser is entitled to a refund of the purchase money, in case it is discovered later on that the judgment-debtor had no saleable interest, The whole of the law on this subject to be found in the reported cases in which such a right has been recognized, is on the express wordings of the various sections of the different enactments. I am, therefore, of opinion that the case reported in Kannu Lal v. Bhagwan Das (1916) I.L.R. 39 All. 114 was rightly decided, and that having regard to the provisions of the present Code of Civil Procedure a suit for refund' does not lie except in a case where a sale is set aside under the provisions of Order XXI, Rule 92.

13. I would, therefore, agree with the order proposed.

14. The order of the Court is that the appeal be dismissed with costs.


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