Henry Richards, Kt. C.J. and Lyle, J.
1. This appeal arises out of a suit in which the plaintiffs claimed to recover a sum of Rs. 15,200 in certain proportionate shares from the several defendants. The suit has been dismissed by the court below as being barred by limitation. The facts, for the purposes of the present appeal, may be taken as admitted. A decree-holder of the name of Mayanand Gir caused certain property to be put to sale in order to realize the amount of a decree. The property was sold and purchased by the plaintiffs. An objection was taken on the part of a claimant to the property in the execution proceedings, but the objection was disallowed with the result that the purchase in favour of the present plaintiff was confirmed on the 20th of May, 1907. The proceeds the sale were paid into court and were distributed amongst the persons who held decrees against the judgment-debtor of Mayanand Gir. Its distribution took place on the 1st of July, 1907. Subsequently the claimant to the property brought a regular suit to which he made the present plaintiffs parties and also Mayenand Gir. That suit was decreed by the court of first instant on the 11th of September, 1907, and after various hearings was confirmed by the High Court on the 22nd of November, 1909. The plaintiffs instituted the present suit on the 12th of September, 1910, claiming to get back the purchase money as already mentioned. The court below, holding that the suit was one for 'money had and received' by the defendants for the use of the plaintiffs, dismissed the plaintiffs' suit as being barred by limitation on the ground that Article 62 applied and that time began to run from the 1st of July, 1907, when the decree-holders received the money.
2. The plaintiffs come here in appeal contending that the decision of the court below was wrong. It seems to us that, apart from the Code of Civil Procedure, the plaintiffs in the present case would have no right to recover back the purchase money they paid merely on the ground that the judgment-debtor's title had proved defective. This seems to have been the view taken by Straight, J., when referring a question to the Full Bench in the case of Munna Singh v. Gajadhar Singh (1883) I.L.R., 5 All., 577. The learned Judge, after referring to a number of rulings, says: 'By all these decisions it seems to have been recognized as an established principle of law, that a purchaser at a sale in execution of decree cannot recover his purchase money, if it turns out that the judgment-debtors, whose immovable property he has purchased, had no saleable interest.' When the case came before the Full Bench this view of the law seems to have been accepted. The learned Chief Justice refers to Section 315 of the Code Civil Procedure, then in force, as being the foundation of the plaintiffs' right, in that case, to get a return of his purchase-money. This also seems to have been the view taken by Napier, J., in the case of Mohiudeen Ibrahim, v. Mahomed Mura Lewai : (1912)23MLJ487 . At page 489 the learned Judge says: 'It has been laid down by the Privy Council in Dorab Ali Khan v. The Executors of Khaju Moheeoodeen, that as in India movable and immovable property are alike capable of being seized and sold under the writ of fieri facias, the responsibility of the sheriff in respect of sales here is governed by the law relating to chattels rather than by that relating to the sale of real property. It is clear that where the property seized was personal estate and it was sold by the sheriff, no suit lay either against the sheriff or the judgment-creditor, who had received the purchase money, to recover it when the property had been recovered from the purchaser by a person claiming title, the principle being that a sale by the sheriff was not a sale in market overt, the purchaser acquiring thereby only what the judgment-creditor had a right to sell, namely, the precise interest, and no more, which the judgment-debtor possessed in the goods, and that there was no warranty of title implied in a sale by the sheriff.' We agree that outside the provisions of the Code of Civil Procedure, to which we shall presently refer, an auction-purchaser has no right to recover back the purchase money merely by showing that the judgment-debtor had no saleable interest.
3. The real reason is that in a sale by the court or its officer, there is no warranty of title, and the money which the purchaser pays cannot, either in law or equity, be said to have been received by the court, its officer, or the creditors for the use of the auction-purchaser. We, therefore, think that, assuming that the plaintiffs had any cause of action, their cause of action was to enforce the right which was given to them by Sections 313 to 316 of the Code of Civil Procedure of 1882 (which admittedly was in force at the time of the sale and distribution of the purchase money in the present case). Section 315 provides, amongst other things, 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 from any person to whom the purchase money has been paid.
4. There is an alteration in the present Code which we need not consider for the reason mentioned above. The plaintiffs' right is regulated in the present suit by the provisions of the Code of 1882.
5. In the Full Bench case to which we have already referred, viz. Munna Singh v. Gajadhar Singh (1883) I.L.R., 5 All., 577, it was unanimously decided that an auction-purchaser was entitled to bring a suit to recover back his purchase money, when it was found that the judgment-debtor had no saleable interest. It seems to us quite clear that this is a form of suit for which there is no special provision in the Limitation Act. We have already pointed out how, in our opinion, it cannot be said to be a suit for money had and received. We, therefore, think that Article 120 applies and it is admitted that if this is the proper article the suit is within time. The learned advocate on behalf of the respondents urges that even if it be held that the plaintiffs' right in the present case is a right under the statutory provisions of the Code of Civil Procedure of 1882, the suit is nevertheless a suit for money had and received by the defendants for the use of the plaintiffs, and he quotes, in support of this contention, the case of Ram Kumar Shaha v. Ram Gour Shaha (1909) 13 C.W.N., 1080. The learned Judges, in deciding that case referred to the case of Hanuman Kamat v. Hanuman Mandur (1891) I.L.R., 19 Calc., 123, and say as follows, at page 1083: 'We are unable to distinguish this case in principle from the case before us.' With great respect to the learned Judges we think that the cases were distinguishable. In Hanuman Kamat v. Hanuman Mandur (1891) I.L.R., 19 Calc., 123 the money was sought to be recovered on the ground that there had been a failure of consideration in the case of a private sale, whilst the case before the learned Judges in Ram Kumar Shaha v. Ram Gour Shaha (1909) 13 0. W.N. 1080 was a case, like the present one, in which an auction-purchaser sought to recover his purchase money on the ground that the judgment-debtor had no saleable interest. As against the authority of this case we have the case, already referred to, of Mohiudeen Ibrahim v. Mahomed Mura Lewai : (1912)23MLJ487 , in which the learned Judges expressly decided that Article 120 was the article applicable to a suit in which an auction-purchaser sought to recover the purchase money on the ground that the judgment-debtor had no saleable interest.
6. Under these circumstances, we think that the appeal should be allowed and the case remanded. We accordingly allow the appeal, set aside the decree of the court below and remand the case with directions to readmit the suit under its original number in the file and proceed to determine the same according to law. Costs heretofore will be in the discretion of the court disposing of the suit.