1. This appeal arises out of a suit in which the plaintiff claimed the sum of Rs. 705-2-6. The plaintiff alleged that he had purchased certain property at an auction-sale in which the defendants- first party were decree-holders, and defendants second party, judgment-debtors. He alleged that after he had purchased this property a suit was brought by a third party against the judgment-debtor for possession, which was successful. It appears that the plaintiff in the present suit applied to be 'brought on to the record of that suit. He was not brought on to the record and the suit was finally decided against the judgment-debtor after purchase by the plaintiff. Under these circumstances the plaintiff alleges that he is entitled to get back the purchase-money and interest from the decree-holders and the judgment-debtor. The Court below has decreed the claim against the decree-holders only. The latter have appealed.
2. The plaintiff has never had the sale set aside nor taken steps to do so. Order XXI, Rule 91, provides that a purchaser at any sale in execution of a decree 'may apply to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold'. Order XXI, Rule 92, provides for the setting aside or confirmation of the sale and further provides that no suit shall lie to set aside the sale. Order XXI, Rule 93, provides for the return of the purchase-money when the sale has been set aside. It is, therefore, quite clear that under the provision of the present Code, the purchase-money can only be got back where the sale has been set aside. To allow the purchaser to get back the price without having the sale set aside, perhaps long after the sale, would obviously open the door to much fraud and would place the decree-holder at a very great disadvantage. Reliance has been placed on behalf of the respondent on the Full Bench case of this Court in Munna Singh v. Gajadhar Singh 5 A. 577 : A.W.N. (1883)130 : 3 Ind. Dec. (N.S.) 491,. In that case the point was whether a plaintiff could recover the purchase-money he had paid on the ground that the judgment-debtor had no saleable interest in the property sold and that he had for that reason been deprived of it by a regular suit or whether he was confined to the remedy provided by the then Code of Civil Procedure. The Court held that, notwithstanding that he might have got back his money by an application, he had the alternative remedy of bringing a separate . suit. It is only necessary to point out that there is a marked difference in the terms of the present Code of Civil Procedure and the Civil Procedure Code of 1882. Section 315 of the latter Act provided that the purchaser might get back the purchase-money when a sale had been set aside under Sections 310, (a), 312 or 313, or when 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. We have already pointed out that under the provisions of the present Code, it is only when the sale has been set aside, that the purchase-money can be returned. In the case of Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 : 12 A. L.J. 908 : 36 A. 529 a somewhat similar question arose. The learned Judges who decided that case expressed great doubts as to the correctness of the decision in the Pull Bench case of Munna Singh v. Gajadhar Singh 5 A. 577 : A. W. N. (1883)130 : 3 Ind. Dec. (N.S.) 491, above referred to. The case was not finally decided at the time, an issue being referred to the Court below as to whether or not the judgment-debtor had a ' saleable interest'. It does not appear what the final order of the Court was. Possibly there was a finding that the judgment-debtor had a saleable interest. The learned Vakil for the respondent points cut that that case arose after the alterations in the Code. It is quite clear from the judgment that the attention of the Court was not called to the change in the law. It, therefore, seems to us to be clear that the plaintiff is not entitled to get back the purchase-money by virtue, of the provisions of the Code. We think it cannot be argued that he has a right to get back his purchase-money under the circumstances of the present case, irrespective of the provisions of the Code. In the case of Shanto Chandar Mukerji v. Nain Sukh 23 A. 355 : A. W. N. (1901)101. the learned Judges say at page 356: ''We think that a purchaser is only entitled to receive back his-purchase-money under the conditions stated in Section 3i5, whether by application under that Section or by suit. As regards private sales, there is under Section 55 26 Ind. Cas. 59 : 12 A. L.J. 908 : 36 A. 529, of the Transfer of Property Act, in the absence of a contract to the contrary, an implied covenant for title by the vendor. As regards sales under a decree of a Court, there is no warranty of title either by the decree-holder or by the Court'. In the case of Dorab Ally Khan v. Abdoul Azeez 5 I.A. 116 : 3 C. 806 : 2 C. L. K. 529 : 3 Snth. P.C.J. 519 : 3 Sar. P.C.J. 818 : 2 Ind. Jur. 426 : 1 Ind. Dec. (N.S.) 1097. 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'.
3. The result is that the appeal is allowed, the decree of the lower Appellate Court set aside and the decree of the Court of first instance restored with costs in all Courts.