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Amolak Chand-mewa Ram Vs. Mohammad Shafi and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Reported inAIR1948P& H1
AppellantAmolak Chand-mewa Ram
RespondentMohammad Shafi and ors.
Cases ReferredSivaramaraju v. Secretary of State. A.I.R.
Excerpt:
.....relevant authorities it was held hat where, purchaser at an auction sale held in execution of a money decree had after the confirmation of the sale in his favour, to part with possession of the property purchased by him by reason of the paramount title of another claimant it being found that the judgment debtor in execution of a decree against whom the property was sold bad no saleable a interest therein, in the absence of any equitable considerations disentitling him to the relief, can maintain a suit for the refund of the price paid by him. while the aforesaid section was in force, it was held that the remedy given to the auction-purchaser thereby was not his only remedy, and that he was not debarred from bringing a suit for the recovery of the purchase money if he had failed to..........the suit, out of which this appeal has arisen, attacked, the said house in execution of a simple money-decree obtained by them against the aforesaid rang lai. jai dev sharma and the other purchasers objected to the attachment under order 21, rule 58, civil p.c. but their objections were disallowed by the executing court. they then filed a suit under order 21 rule 63, civil p.c., to establish their title to the attached house. the firm amolak chand mewa ram, the attaching decree-holders, withdrew the attachment and allowed the suit under order 21 rule 63, civil p.c., brought by jai dev sharma and there to be decreed on 12th november 1937. in the meanwhile, on 24th february 1937, captain sardar surendar pal singh, defendant 2 in the suit giving rise to this appeal, had sued out execution.....
Judgment:

Achhru Ram, J.

1. This second appeal has arisen in the following circumstances. The house in dispute belonged to Ranglal, defendant 1. He sold the same to one Pt. Jai Dev Sharma and others by means of a sale deed dated 20th November l936. On 22-11-1986, firm Amolak Chand Mewa Ram appellants in the present secord appeal and defendant 5 in the suit, out of which this appeal has arisen, attacked, the said house in execution of a simple money-decree obtained by them against the aforesaid Rang Lai. Jai Dev Sharma and the other purchasers objected to the attachment under Order 21, Rule 58, Civil P.C. but their objections were disallowed by the executing Court. They then filed a suit under Order 21 Rule 63, Civil P.C., to establish their title to the attached house. The firm Amolak Chand Mewa Ram, the attaching decree-holders, withdrew the attachment and allowed the suit under Order 21 Rule 63, Civil P.C., brought by Jai Dev Sharma and there to be decreed on 12th November 1937. In the meanwhile, on 24th February 1937, Captain Sardar Surendar Pal Singh, defendant 2 in the suit giving rise to this appeal, had sued out execution of his simple money decree against the aforesaid Bang Lai by attachment of the same house. The attachment was effected on 19th March 1937 and on 11th June 1937 an order was made for the sale of the attached house. Firm Amolak Chand Mewa Ram and some other decree-holders of Bang Lai applied for execution of their respective decrees by rateable distribution of the assets to be received on the sale of the house. Objections filed by Pt. Jai Dev Sharma and his co-vendees under Order 21, Rule 58, Civil P.C., were disallowed by the executing Court. After the disallowance of these objections the house was sold on 3rd July 1937 and was purchased by Mohammad Shan plaintiff for a sum of Rs. 2,200. The sale proceeds after deduction of the auctioneer's commission were rateably distributed amongst the various decree-holders, firm Amolak Chand Mewa Ram getting Rs. 666-10-0 as their rateable share. Some time after the sale, Jai Dev Sharma and his co-purchasers brought a suit under Order 21, Rule 63, Civil P.C., for a declaration that the house was not liable to attachment and sale in execution of the decree of defendant 2 against Rang Lai, defendant 1. The suit of Jai Dev Sharma and others was decreed by the first Court on 10th July 1938. The decree was affirmed on appeal by the District Judge and a second appeal from the said decree filed in the High Court also was dismissed on 21st April 1943. After having exhausted his remedies by way of appeal and second appeal the plaintiff brought the suit, out of which this second appeal has arisen, for a refund of the sale price on the ground that the judgment-debtor had, at the time of the sale in his favour, no saleable interest in the house in dispute. He alleged that Captain Sardar Surendar Pal Singh defendant 2, was responsible for the refund of the, whole of the sale price, including the commission paid to the auctioneer, became it was due to fraudulent representations, made by him that the plaintiff was induced to purchase the property. In the alternative it was claimed that each of the decree-holders who md got rateable-distribution must be made to refund the amount received by such decree-holder by way of such rateable distribution. The learned Subordinate Judge, who tried the suit, granted the plaintiff a decree for recovery of a sum of Rs. 2090 out of the sale price, paid by him, holding each of the decree-holders defendants responsible for the amount received by such decree-holder by way of rateable distribution, Defendants who had been held liable for a sum of Rs. 655-10-, alone appealed to the learned District Judge from the decree of the learned Subordinate Judge, but without success. He has come up in. second appeal to this Court.

2. The learned trial Judge found against the plaintiff in so far as his contention as to defendant 2 being guilty of fraud or collusion or of making false representations was concerned. He, however held that the plaintiff was entitled to the refund of the, price paid by him by reason of the judgment-debtor having no saleable interest at all in the house sold.

3. Before the learned District Judge the decision of the learned Subordinate Judge was contested only on two grounds, namely, (1) that an auction-purchaser of property in which the judgment-debtor is discovered to have had no saleable interest at the time of the execution sale has no remedy except that given to him by the provisions of Order 21, Rules 91 and 93, Civil P.C., and that if he fails to apply for the setting aside of the sale under Rule 91 and for refund of the sale price under Rule 93, he can claim no relief in respect of the price paid by him and (2), that the learned trial Judge wrongly applied Article 120, Limitation Act to the suit and erroneously held the same to be within limitation, the suit being really governed by Article 62, Limitation Act and having been brought much more than 8 year after the receipt of the money by the appellant,, being hopelessly barred by time. The learned District Judge overruled both these contentions of the appellant. In arguing the present second appeal Mr. D.N. Aggarwal contested the correctness of the decision on both these points.

4. In so far as the competency of the plaintiff to sue for refund of 4he sale price is concerned, the matter is concluded, by 9, Full Bench-judgment of the Lahore High Court in Mher Chand v. Milkhi Ram 19 A.I.R.1932 Lal.421. In that judgment after a review of all the relevant authorities it was held hat where, purchaser at an auction sale held in execution of a money decree had after the confirmation of the sale in his favour, to part with possession of the property purchased by him by reason of the paramount title of another claimant it being found that the judgment debtor in execution of a decree against whom the property was sold bad no saleable a interest therein, in the absence of any equitable considerations disentitling him to the relief, can maintain a suit for the refund of the price paid by him. Jai Lal, J., who wrote the judgment of the Full Bench dealt most exhaustively with all the decided cases that had taken a contrary view.

5. Before the matter came up for consideration before the Full Bench of the Lahore High Court, a Full Bench of the Chief Court of Oudh had also taken a similar view in Bahadur Singh v. Ram Phal 17 A.I.R.1930 Oudh.148. More recently the question came up for consideration before a Full Bench of the High Court. of Madras in Macha Goundan v. Kottora Koundan. 23 A.I.R.1936 Mad.50. Ramesam, J., who wrote the judgment of the Full Bench agreeing with the view taken by the High Court of Lahore held that where a mortgage decree and the sale of the mortgaged property in execution of the mortgage decree are held, in a suit filed by a third party subsequent to the confirmation of the sale, to be not binding on the third party, and, as a consequence thereof, the auction purchaser loses possession of the property, he has a right to recover back the purchase money from the decree-holder by a separate suit.

6. The learned Counsel for the appellant relied mainly on tho judgment of a Full Bench of five Judges of the Allahabad High Court in Amar Nath v. Firm Chotelal Durgaprasad. : AIR1938All593 . I have perused this judgment with all the care and respect which was due to the learned Judges constituting the Bench, but, with the utmost deference to the opinion expressed by those learned Judges I can see no ground at all for not following the view taken by the Lahore Full Bench, supported as it is by the pronouncements of the Full Benches of the Madras and the Oudh Courts. There is no argument in the Allahabad judgment which has not been examined in the three Full Bench judgments mentioned above and there is no important reported case referred to there which has not been dealt with in those judgments and it will be an act of supererogation on my part to reiterate what has been said in those judgments with regard to those arguments and those decisions. I, therefore, need only express my respectful agreement with the view of law taken in the aforesaid Full Bench decisions.

7. It is true that as pointed out by their Lordships of the Judicial Committee several times, it is of the essence of a Code to be exhaustive but a Code is presumed to be exhaustive only on matters with which it actually deals. Regarding the matters not actually dealt with by it, a Code has never been regarded to be exhaustive. There is a large body of decisions in which the Courts have held the Civil Procedure Code not to be exhaustive and have acted upon the assumption of the possession by them of an inherent power to act ex debito justitia to do that real and substantial justice for the administration of which alone they exist. Section 815, Civil P.C. of 1882, which has now been replaced by Rule 93 of Order 21, containeda provision to the effect that when it was found that the judgment-debtor had no saleable interest in the property which was purported to be sold and the purchaser was for that reason deprived of it, such a purchaser was entitled to receive back his purchase money from any person to whom the same had been paid, and it was further provided in the aforesaid section that the repayment of the said purchase money could be enforced against such person in the same manner as was laid down by the Code for the execution of a decree for money. While the aforesaid section was in force, it was held that the remedy given to the auction-purchaser thereby was not his only remedy, and that he was not debarred from bringing a suit for the recovery of the purchase money if he had failed to avail himself of the remedy provided by that section. Under the Code of 1908 it is only where the sale has been set aside on an application made by the auction purchaser under Rule 91. for the setting aside of the sale on the ground of the judgment-debtor having no saleable interest in the property which was purported to be sold that he can move the executing Court for a refund of his purchase money. This Code contains no provision at all for a case in which the auction purchaser by reason of being ignorant of the judgment-debtor having no saleable interest in the property purported to be sold or for any other reason is not able to move the executing Court to set aside the sale under Rule 91. If under the Code of 1882, which conferred on such an auction purchaser a very general remedy for claiming the refund of the purchase price paid by him was held not to take away his common law right of maintaining a suit for the recovery of the sale price on the ground of the total failure of consideration, much less can the present Code be held to take away that right, when we find that the remedy given to the auction purchaser by that Code is of a much more limited character and can be availed of only in a very limited number of cases and not generally. To hold otherwise would mean that where the auction purchaser gets possession of the property purchased by him believing in good faith that the judgment-debtor had a saleable interest therein and is ousted by a person having a paramount title long after the expiration of the period prescribed for an application to set aside the sale on the ground of the judgment-debtor having no saleable interest in the property sold, is left entirely without any remedy and must lose both the property and the money paid by him at the execution sale. Such an inequitable and unjust result could not have been contemplated by the Legislature. In my opinion, therefore, the change in the language of the Code was not intended to take away from an auction purchaser who in an execution sale has paid good money for property in which the judgment-debtor is subsequently discovered to have no saleable interest, the remedy for getting refund of the sale price by means of a suit which was fully recognised by all the Courts in cases arising under the old Code.

8. Coming now to the question of limitation, after giving due weight to the arguments addressed to us at the bar, I am of the opinion that the two Courts below have come to a correct conclusion in holding that the suit is governed by Article 120 and not by Article 62. Article 62 provides that a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use must, be brought within three years from the date when the money is received by the defendant. While it is true that in order to attract the application of the aforesaid article it is not necessary that the defendant should, when receiving money, intend to pay it to the plaintiff, and the article has been applied even in cases where the money was received by the defendant under an adverse and hostile claim, the application of the article has never been extended to cases in which the original receipt of the money by the defendant could not be deemed to be either in fact or by operation of law as a receipt on behalf, or for the use, of the plaintiff. The Article has, to my knowledge, been never applied to oases in which by reason of some subsequent events, the money, which was initially paid to the defendant for his own use, was to be regarded as in law money received by him for the plaintiff's use In the present case, but for the subsequent intervention of Jai Dev Sharma and others, who claimed the property purchased by the plaintiff under an earlier sale, the receipt by the appellant of the money paid to him at the rateable distribution could not but be regarded as a receipt by him for his own use and benefit. The payment was made to him in partial discharge of his own decree and but for the declaration made by the Court in the suit of Jai Dev Sharma and others as to the property not being liable to sale in execution of the decrees of the appellant and the other decree-holders, the plaintiff could not have claimed any right to the aforesaid money and could not have been heard to say that the same had been received by the appellant for his use.

9. It is noteworthy that in cases arising under the Code of 1882, in which it, was held that quite independently of the remedy given to him by Section 315 of the aforesaid Code an auction purchaser dispossessed of the property purchased by him at an execution sale on the ground of the judgment-debtor having no saleable interest therein could maintain a suit for the recovery of the purchase money, such a suit was held to be governed by Article 120, Limitation Act. Reference may in this connection be made to the decision of a Division Bench of the Calcutta High Court in Makar Ali v. Surfuddin. 10 A.I.R.1923 Cal.85 and a judgment of a Division Bench of the Madras High Court in Nilakanta v. Imam Sahib. ('93) 16 Mad. 361. The same view of the law was taken by the Allahabad High Court in Sidheswari Prasad Narain Singh v. Mayanand Gir. (1913) 35 All.419.

10. In Gurudas Pyne v. Ram Narain Sahu. (1984) 10 Cal.860 their Lordships of the Committee held that the operation of Article 62 was to be confined strictly to cases where at the time of the payment being made to the defendant such payment could be regarded as having been received for the plaintiff's use and that the Article could not be applied to suits to enforce equitable claims on the part of the plaintiffs to follow the money in the defendants hands. The judgment of their Lordships reported in Annamalai Chettiar v. Muthukaruppan Chettiar. 18 seems to be another case in point. More recently a Full Bench of the Madras High Court in Gopalaswami Naick v. Province of Madras. 32 A.I.R.1945 Mad.462 declined to apply Article 62 to a claim for following the money in the defendants' hands on equitable grounds.

11. Reliance was placed by the learned Counsel for the appellant on the judgment of a single Judge of the Madras High Court in Sivaramaraju v. Secretary of State. A.I.R.1935 Mad.354 in which Article 62 was applied to a suit brought by an auction purchaser against the decree-holder for the return of the sale price on the sale being set aside on the ground of some irregularity. With all respect to the learned Judge who decided the case, I must confess my inability to agree with the view taken by him, even on the facts of that case. The learned Judge appears wrongly to have assumed that Article 62, irrespective of its language, necessarily applies to all actions which may be regarded as analogous to actions known to the English law as those for money had and received.

12. For the reasons given above, I am of the opinion that there is no force in this appeal and would dismiss the same with costs.

Teja Singh, J.

I agree.


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