1. This is a special appeal by an auction purchaser against a judgment and decree of a learned single Judge of this Court dated the 25th August, 1960, and raises an interesting question of law, namely, whether an auction-purchaser is entitled to recover back the purchase money from the decree-holder after the confirmation of a sale in his favour if it is discovered in a suit brought by a third party that the judgment-debtor had no saleable interest in the property purchased by the auction purchaser, and, therefore, he is deprived of the possession of such property.
2. The facts leading up to this appeal lie in a narrow compass. Mst. Rama respondent No. 1. obtained a money decree against Mst. Gulab. The former haying died during the course of the present appeal, is now represented by Nathulal and others. The judgment-debtor Mst. Gulab also having died is represented in this appeal by respondents Nos. 5 to 7. Respondents Nos. 2 and 3 are certain other decree-holders against Mst. Gulab. Respondent No. 4 Ladulal is the alleged adopted son of Kesharlal, husband of Mst. Gulab. In execution of her decree against Mst. Gulab, Mst. Rama attached a Nohra alleging the same to belong to the latter.
This property eventually came to be sold at a Court sale and was knocked down in favour of the appellant auction-purchaser on the 30th April, 1948, for Rs. 8300/- Jhadshahi equivalent to Rs. 8818/12/- in Indian currency. On the auction-purchaser having deposited the purchase price, the sale was confirmed by the execution Court on the 10th July, 1948, and a sale certificate was granted to him. This sale was admittedly conducted and made subject to a suit to which reference would be made presently. The sum of Rs. 8818/12/- was then rateably distributed between Mst. Rama, and the other two decree-holders Ramchandra and Gulabchandra, respondents Nos. 3 and 4. But before the property was thus sold, Ladulal the alleged adopted son of Kesharlal (husband of the judgment-debtor Mst. Gulab) had instituted a suit on the 26th September, 1945, against Mst. Gulab (his adoptive mother) and the decree-holder Mst. Rama and the other two decree-holders for a declaration that he was the adopted son of Kesharlal and that the property in question was not liable to attachment and sale in execution of the decree of Mst. Rama against Mst. Gulab. After the sale had been knocked down and confirmed in favour of the appellant, he was also added as a party defendant in that suit. This suit was decreed in Ladulal's favour on the 6th January, 1949, and it was held that he was the adopted son of Kesharlal and that the property in question was not liable to attachment and sale in execution of the decree of Mst. Rama against Mst: Gulab, as the latter had no right or title to it. On the same day, that is, the 6th January, 1949, the appellant applied to the executing Court that the auction money which was up to that time lying in Court be not distributed among the decree-holders and that the same be refunded to him, inasmuch as the suit brought by Ladulal with respect to the property in question had been decided in his favour. This, however, proved to be of no avail, and the money realised by auction was, as already stated, rateably distributed among the various decree-holders on or about the 11th/12th January, 1949.
3. The judgment-debtor Mst. Gulab preferred an appeal against the judgment and decree of thetrial Court dated the 6th January, 1949, to this Court, and the same was dismissed on the 8th January, 1951. Respondent Ladulal then applied for being put in possession of the property and this was allowed to him by the executing Court on the 1st April, 1951. This led to an application dated the 23rd April, 1951, by the auction-purchaser for return of the auction-money deposited by him as it had turned out that the judgment-debtor Mst. Gulab had no saleable interest in the property auctioned. The executing Court rejected this application by its order dated the 9th September, 1952. A first appeal against that order was dismissed by the learned District Judge by his order dated the 25th July, 1956, and a second appeal was likewise dismissed by a learned single Judge of this Court by his judgment and order under appeal. This is how the present appeal has come to be filed.
4. The principal question which thus emerges for determination in this appeal is whether an auction purchaser is entitled to recover back the purchase money from the decree-holder after the confirmation of the sale in his favour if it is held in a suit brought by a third party that the judgment-debtor had no saleable interest in the property purchased by the auction-purchaser, and, thereafter he is deprived of the possession of such property.
5. As rightly observed by the learned single Judge, there is a divergence of judicial opinion on this point among the various High Courts in India, and, if we may say so, this divergence 'is further to be found in some cases between the decieions of the same High Court. One view is that an auction-purchaser at a court-sale is not entitled to maintain a suit for the recovery of the purchase money paid by him in the event of the judgment-debtor being proved not to have any title to the property sold after a sale has been confirmed. This view is based on the ratio decidendi that there is no warranty of title in an auction-sale, and the auction-purchaser has, therefore, no right either in law or in equity to recover the purchase price from the decree-holder in case it subsequently turns out that what he has purchased does not belong to the judgment-debtor. Reliance has also been placed in support of this view on the theory that a statutory right was granted by Section 315 of the Codes of Civil Procedure of 1877 and 1882 by which an auction-purchaser was entitled to sue to recover the purchase price under those Codes; but with the repeal of that section in the Code of 1008, that statutory right came to an end, and Rules 91 to 93 of Order 21 of the present Code do not permit any such thing to be done.
This view is forcefully propounded in a Full Bench decision of the Allahabad High Court in Amar Nath v. Firm Chotelal, AIR 1938 All 593 (FB) and a bench decision of the Bombay High Court in Santimmappa v. Balbhim Co-operative Credit. Society, AIR 1950 Bom 313. To indicate the acuteness of the conflict which has existed on this subject, it may be permissible to point out at this place that in an earlier Full Bench decision of the Allahabad High Court in Bindeshari Pershad Tewari v. Badal Singh, AIR 1923 All 394 (FB), it was held that an auction-pur-chaser under a decree which had been set aside after the confirmation of the sale as a result of a separate suit was entitled to recover his purchase money from the decree-holder. It was further held in this case that his remedy lay by an application under Section 47, C. P. C. As other instances of decisions on this side of the line, we may refer to Kameshwar Singh v. Bansidhar Marwari, AIR 1937 Pat 532, Amal Chandra v. Ram Swarup, AIR 1939 Cal 310, and Abinash Chandra v. Matilal, AIR 1961 Cal 172.
6. On the other side of the line are the Full Bench decisions of the Oudh Chief Court and the High Courts of Lahore, Madras and Rangoon in. Bahadur Singh v. Ram Phal, AIR 1930 Oudh 148 (FB), Mehar Chand v. Milkhi Ram, AIR 1932 Lah 401 (FB) Macha Koundan v. Kottora Koundan, AIR 1936 Mad 50 (FB) and Maung Aye Maung v. A. Scott and Co., AIR 1940 Rang 1 (FB), respectively, and the High Court of Tra-yancore Cochin in State v. Padmanabhan Pillai, AIR 1956 Trav-Co. 216 and of Andhra Pradesh in P. Malliah v. Brahmayya, AIR 1960 Andh Pra 89 have also taken the same view. The view taken in these cases, broadly speaking, is that the purchaser of an immovable property at art auction held by the Court in execution of a decree is entitled to maintain a suit for recovery of the price paid by him if he is deprived of the property subsequent to the confirmation of the sale-in his favour, the judgment-debtor having been found to have had no saleable interest in it, inasmuch as the sale in such a case is founded on a mutual mistake of fact between the decree-holder and the auction-purchaser or there is a total failure of consideration, or such a claim is accepted to be maintainable on the basis of money had and received or a like equitable ground. It has been further held in these cases that the object of the Legislature in enacting Rule 93 of Order 21, C. P. C. by which an auction-purchaser is entitled to an order for the repayment of the purchase money on the setting aside of a sale before it is confirmed was not to deprive the auction-purchaser of any rights which he otherwise may have had in that connection but was merely to provide him with an unconditional right, capable of being enforced summarily to get back the purchase-money if and when the sale is set aside under Rule 92, and it is maintained that in other cases, his right to have recourse to the ordinary remedy of instituting a suit for refund and to bring his case within the ambit of the rules of equity or what may be called the general principles of law cannot be held to have been adversely-affected.
7. It would thus be obvious that there is a fairly sharp cleavage of judicial opinion on the question which falls for decision before us, and we are inclined to think that it can serve no useful purpose to deal with these cases one by one. With respect, we believe that in a matter attended with such divergence of opinion, the best course should be to deal with the controversy on first principles, and this is therefore the course which we think fit to adopt. The more so, as we are unable to agree with all the reasons which have been given bv even those courts which favour the view which has commended itself to us.
8. We may state at once that on a most careful and anxious consideration of the whole matter, the view which we have felt persuaded to accept is that, in a case of this type, unless there be exceptional circumstances, and that is a matter which will depend on the facts and circumstances of each particular case, we see no cogent reason, on the whole, why an auction-purchaser who has been deprived of the property purchased by him as the result of a suit filed by a third party against him and certain other persons including the decree-holder, should not have the right to recover the purchase-money paid by him on the broad consideration that a purchaser should not be made to lose the property as well as the price he paid for it for no fault of his.
9. We shall now proceed to discuss the reasons which have impelled us to accept this view.
10. We may begin by pointing out that there seems to us to be a consensus of opinion that an auction-purchaser will have the right to recover his purchase-money where a fraud or misrepresentation has been practised upon him by the decree-holder or the judgment-debtor in connection with the sale of the property purchased by him, and in such a case it admits of no doubt or dispute that a suit would lie on general principles even after the sale has been confirmed.
In the second place, we wish to point out that in some of the cases in which the view which has commended itself to us has been adopted as against the other one, it seems to have been propounded that there is a warranty of title, or, at any rate, an implied warranty in the sense that it was on the decree-holder's representation that the judgment-debtor had a saleable interest in the property sold that the Court proceeds to sell the property, and that being so, when it is found that the judgment-debtor had no saleable interest at all in the property in question, this warranty was broken, as it were, and therefore it is maintained that the auction-purchaser would have a perfectly good cause of action for the recovery of his purchase-money.
11. We have given this theory our most earnest and careful consideration, and, with all respect, we have not felt persuaded to accept this as unquestionably correct. For, it seems to us to be more or less settled law that what passes at a Court-sale is the right, title and interest of the judgment-debtor in the property sold with all its risks and defects, and that neither the Court nor the decree-holder offers any warranty of title in respect of such a sale. There is overwhelming judicial authority in favour of this proposition, and if it is necessary to cite any decisions, we would refer to Sobhag Chand Gulab Chand v. Bhaichand, ILR 6 Bom 193 (FB), Sundara Gopa-lan y. , Venkata Varada Ayyangar, ILR 17 Mad 228, Shanto Chander v. Nainsukh, ILR 23 All 355, Shadi Ram v. Amin Chand, AIR 1930 Lah 937, Kunjikavu Amma v. Janaki Amma, AIR 1957 Ker 98 and Dorab Ally Khan v. Abdool Azeez, 5 Ind App 116 (PC).
That being so, in our opinion, it would be straining things beyond permissible limits to hold that any warranty of title, whether express or implied, is giyen by the Court or by the decree-holder with respect to the property which is auction-ed at a Court-sale. This will be further obvious when we turn to the provisions of Order 21 itself. Order 21 Rule 11 provides in the case of a written, application for execution that every such application shall specify the mode in which the assistance of the Court is required, and where such mode happens to be the attachment and sale of any immovable property belonging to a judgment-debtor Rule 13 of the same Order lays down that the decree-holder shall give a specification of the judgment-debtor's share or interest in such property, 'to the best of the belief of the applicant and so far as he has been able to ascertain the same'. This is indeed the limited kind of verification which he is required to give at the foot of tha execution application under Order 21 Rule 11 Civil Procedure Code. See Form No. 6 of Appendix E of the First Schedule of the Civil Procedure: Code. Again, before the property is sold by public auction, a proclamation of sale is required to be made under Rule 66 of this Order. Sub-rule (2) of Rule 66 requires that the proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state, among other things, as fairly and accurately as possible, tha property to be sold. Sub-rule (3) then lays down that every application for an order for sale shall be accompanied by a statement signed and verified in the manner prescribed for the signing and. verification of pleadings, and shall contain the matters required by Sub-rule (2) to be specified in the proclamation, so far as they are. known to or can be ascertained by the person making the verification.
Reference may also be made here to the conditions of sale which are set out in the proclama-tion of sale itself as per Form No. 29 of Appendix-E of the First Schedule in which it is explicitly stated that the particulars specified in the Schedule as to the property to be sold have been stated, to the best of the information to the Court, but the Court shall not be answerable for any error, mis-statement or omission in the proclamation. All that being so and further having regard to the fact that the information which is usually available to a decree-holder as regards the right, title or interest of a judgment-debtor in the property which is intended to be brought to sale is neither accurate nor full for reasons not far to seek, it seems to us that it would be going too far to hold that either the decree-holder or the Court holds out any guarantee of title to the prospecting purchaser or is in a position to do so. We feel constrained to point out, therefore, with all resepct, that we are not prepared to accept this as a valid foundation for the view which has found favour with us, and in doing so we differ from those Courts which have taken the same view as we have in so far as they have rested their conclusion on such a foundation, which, in our opinion, is too weak to support the conclusion to which it is intended to come.
12. Even so, the question still remains whether the auction-purchaser who discovers that the judgment-debtor has no saleable interest whatever therein has any remedy for recovering the purchase price on any other grounds? Two classes of cases may possibly arise in this connection. The first type is where the auction purchaser discoverssuch a defect, before the sale is confirmed. The second is where he discovers this after the sale is confirmed.
13. Now so far as the first class of cases goes the Code of Civil Procedure itself makes a provision under Rules 91 to 93 of Order 21. Rule 91 lays down that the purchaser at any Court-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. Then Rule 92 provides inter alia that where such a complaint is substantiated, the sale shall be set aside; but where it is not, then it will be disallowed, and thereupon the sale would become absolute. Then comes Rule 93 which enacts that where a sale of immovable property is set aside under Rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest, as the Court may direct against any person to whom it has been paid.
It is clear, therefore, that when on an auction-purchaser's application under Rule 91, the sale is set aside before it is confirmed he is entitled to an order for repayment of the purchase-money. But where his application is disallowtid and the sale is confirmed, he is precluded by Rule 92 (3) from bringing a suit to set aside that order. These rules are, however, intended to deal with that type of case where the defect as to title isdiscovered before a sale is confirmed.
14. It would, in our opinion, be convenientat this place to invite attention as well to the state of law under the earlier Codes of 1877 and 1882. These contained Section 315 which was worded as follows :-
'When a sale of immovable property is set aside under Section 312 or 313, or 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 whomthe purchase-money has been paid.
The repayment of the said purchase-money and of the interest (if any) allowed by the Court may be enforced against such person under the rules provided by this Code for the execution of a decree for money.'
The present Code does not contain' any such provision. It has on this account been held by some Courts that the right which was given to the auction-purchaser for the recovery of the purchase money by Section 315 is no longer available under the Code of 1908-with which we are concerned,and, therefore, he has no remedy for recovering the money paid by him even though it may transpire that the judgment-debtor had no saleable interest whatever in the property purchased by him and he may stand deprived of the possession ofthe property at the hands of a third party.
Indeed the repeal of this provision from the present Code has been accepted, if we may say so, as a powerful argument by some of the Courts forthe view that the auction-purchaser has no remedy to recover his purchase-money, once thesale has been, confirmed (except perhaps where hehas been subjected to fraud or misrepresentation),but we are disposed to think that perhaps toomuch is sought to be spelled out from the deletion of a proyision like Section 315 from the present Code.
15. While we are on this aspect of the case, we cannot over-emphasise the fact that the Code of Civil Procedure is, speaking broadly, and, as a rule, a Code of procedure, and as its preamble shows; it concerns itself with the procedure of the Courts of Civil Judicature. It would be a grave mistake therefore if we may say so with utmost deference, to forget that it deals with procedural matters, that is, with matters relating to the machinery for the enforcement of substantive rights, as contra-distinguished from the substantive rights themselves. As to the latter rights, we must look elsewhere, that is, to the statute law or the general principles of law. Indeed, even in matters relating to procedure, it seems to us to be recognised that all procedure should be accepted to be permissible unless it is prohibited by the Code of Procedure either expressly or by necessary implication.
16. In this background, we find ourselves entirely unable to accept the view of those Courts which hold that because Section 315 does not find a place in the Code of Civil Procedure of 1908, the dispossessed auction-purchaser in the second class of cases has no remedy at all to recover his purchase-money. Again, as we read Section 315, it does not seem to us to be necessarily referable to the remedy of a suit, and was broad enough to cover a proceeding by or in execution even after the sale was confirmed. For aught we know, the Legislature might have thought that so far as the remedy in the shape of the recovery of the purchase-money where the sale was not confirmed or before it was confirmed was laid down in other provisions of the Code and was sufficiently provided for, and it did not think it advisable that any such disputes after the sale was confirmed should be allowed to be decided by any proceeding in the execution department, and for some such reason sis this, the proyision contained in Section 315 might well have been Omitted from the present Code. But from this we are unable tb agree thai it can legitimately follow that the Legislature necessarily contemplated that the dispossessed auc-tion-purchaser should have no remedy in such a case even by way of a suit.
As We have already pointed out such a right is allowed by almost all Courts in 'the case of an auction-purchaser who has been imposed upon by misrepresentation or fraud in connection with the sale of the immovable property purchased by him and of which he may be deprived later. Likewise, it seems to us, even accepting that at a court-sale neither the Court nor the decree-holder guarantees title to the property brought to sale, that the auction-purchaser who stands deprived of the property purchased by him at the instance of a third party, it having been established that the judgment-debtor had no right or title to it, is subjected to a wrong when he stands to be deprived both of the property purchased by him and of the money which he paid for if. In such a caste, the property could not have been sold at all in execution of the decree-holder 3 decretal claim,and. therefore, the position is as if there was no sale, and if there was no sale of the property, to all intents and purposes, the decree-holder cannot, in our opinion, lay claim to the money realised from the sale and a case like this, where the judgment-debtor has no saleable interest whatever, would, in our opinion, be a case of absolute fallare of consideration. As observed by Baguley, J., in AIR 1940 Rang 1 (FB) (Supra), where the judgment-debtor has no attachable interest at all, nothing has been sold, and if nothing is sold, there is no sale, and, therefore, there is nothing to become absolute and nothing to be set aside and consequently there is simply a payment of money in return 'for nothing.
17. Now, in this state of things, we are strongly disposed to accept that the auction-pur-
chaser unless he has otherwise disqualified himself from obtaining relief, is certainly subjected to a wrong for no fault of his, and we see no reason why such a wrong should be. allowed to go altogether unredressed. The right to recover money that has been paid for a certain consideration which has absolutely failed, and which is the sale of the property of which the auction-purchaser has been completely dispossessed is, in our opinion, a right of a civil nature, and for the recognition of a right like this we may refer to Section 65 of the Contract Act or the principle underlying it. This section reads as follows:
'When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.'
We are, therefore, unable to agree with the view taken in some of the cases which have been followed by the learned single Judge that such a fight has no existence or that it is not possible to found such a right in law. Indeed Section 315 which existed in the Codes of 1877 and 1882 to which we have referred above, itself indicates that such a right existed, for which it provided a particular remedy. It may be true that that re-medy is no longer available under the Code of 1908 so far as execution is concerned. But that is no justification, in our respectful judgment, for taking the exterme view that the right which was recognised tinder that section is unknown to the law of the land and/or that it cannot be giveneffect to even by an independent suit.
18. We should also like to mention that a right like this may also be founded on the principle of money had and received which has been recognised under the English law and to whicheffect has been given under the Indian law also as would appear from the language of Article 62 of the Indian Limitation Act. It has been observedthat when this Article, speaks of a suit for money repeived by the defendant for the plaintiff's use, it points to the well-known English action in that form and consequently it applies where the defendant has received money which in justice andequity belongs to the plaintiff under circumstances which 5n law renders the receipt of it a receipt by the defendant to the use of the plaintiff.
Thus wrere money is paid by the plaintiff to the defendant under an agreement which is void or which is discovered to be void, the money would be money received by the defendant for the use of the plaintiff within the meaning of this Article. We have had occasion to consider the scope and ambit of Article 62 of the Limitation Act in Jain Brothers and Co., Bundi v. State of Rajasthah (Civil Reference No. 64 of 1961, D/- 19-8-1963 : (AIR 1964 Raj 14) to which both of us were parties) and what we held there may be briefly reproduced in the following extract:
'Our conclusion, therefore, on a most careful and earnest consideration that we are able to give to this vexed matter is that we find it difficult to escape the view, on the whole, that the correct interpretation to be put on the key words in Article 62 is the one which should conform to the meaning of these words in the English cases and that a simple or literal interpretation of these words which appear to us to be clearly technical as discussed above would not be correct. That being so, it must follow that Article 62 governs suits for money, had and received, not only where the defendant may have actually received money for the use of the plaintiff as his agent or in a like capacity, but it also governs suits for money whereof it can be rightly postulated that the defendant has received money which he had no right to receive and the receipt whereof by the defendant therefore amounts in law or by a legal fiction to a receipt by him for the plaintiff's use.'
19. From the discussion that we have made above, we think in disagreement with the learned single Judge that the better and the more just view is that where an auction-purchaser is dispossessed of the property after the sale has been confirmed in his favour at the instance of a third party on the ground that the judgment-debtor. had no saleable interest therein, he should not and need not be made to lose both the property and money he paid for it, and that it should be open to him to recover such money by way of suit unless he has disentitled himself to such relief by any fraud or inequitable conduct on his part.
We are fully aware that the decree-holder willbe thus deprived of the money which has been putinto his pocket and thereby put to some disadvantage. But in a situation like this, we mustchoose the lesser evil, and we think that the disadvantage to the auction-purchaser will be fargreater than the disadvantage to the decree-holderwho would have been only entitled to that moneyprovided the property sold had belonged to thejudgment-debtor which it did not, and, therefore,if such property had not been sold as it shouldnot have been, he would not haye got anythingout of that property. Surely, it was not open tothe decree-holder to satisfy his decree by attachment and sale of the property of any other person than the judgment-debtor, and, therefore, insuch a case, if the decree-holder is required to paythe auction-money back to the auction-purchaser,it cannot, be said in all fairness that he is beingsubjected to any unjust treatment, or that he isbeing deprived of something to which he wasreally entitled.
20. It has also been Maintained in some cases as militating against the correctness of theview we are takiag that on our view the decree-holder would be left without a remedy in connection with the satisfaction of his decree which might in certain cases have been consigned to the record as haying been fully satisfied and that it would not be possible for him to start the execution over again because a sale confirmed under Order 21, Rule 92 would stand as a barrier in his way and should he attempt to execute the decree afresh, he would in many a case be confronted with a plea of limitation which may be almost insurmountable. We are clearly of opinion that there is no substance in any of these contentions.
21. Taking up the question of the confirmation of the sale, we think that it would be hardly correct to predicate of a sale like this that it still stands intact. It is true that the sale has not been set aside in a proceeding under Order 21 Rule 92 Civil Procedure Code, and, therefore, it has become absolute so far as that rule is concerned. But at the same time, it cannot be forgotten that in a suit brought by a third party against the decree-holder as well as the judgment-debtor and the auction-purchaser, this very sale has come up for challenge and successfully too, and that being so, the correct position that emerges is that in such a case, the sale stands virtually set aside and Order 21 Rule 92 cannot be accepted to be a valid bar, even without a formal order to that effect, against the further execution of the decree. This view is perfectly supportable on judicial authority and we would refer to Radha Kishun Lal v. Kashi Lal, AIR 1924 Pat 273 in this regard.
22. As for the remaining objection, we are clearly of the opinion that once the decree-holder is compelled by the Court to refund the decretal amount recovered by him in the shape of the purchase price of the property sold to the auction-purchaser, that must operate as an automatic revival of the execution case with effect from the stage at which the money was paid to the decree-holder, and it should be open to the latter to take any further steps which may the necessary to realise his money from the judgment-debtor by any of the modes permissible to him at law. We see no valid reason why this should not be permitted on principle or authority. As an analogous instance, we would cite the case of a plaintiff in whose favour an ex parte decree is passed but is subsequently set aside in a suit by the defendant -- say, on the ground of fraud without going into the merits of the case such as the falsity or the fraudulent nature of the claim and the matter is contested tooth and nail upto appellate Courts but without any different result and in such a case an application is eventually made to resume proceedings in the original suit but it is opposed on the ground of limitation; In Ajablal v. Devilal, ILR (1963) 13 Raj 690 : (AIR 1964 Raj 71) which was a case of that type, the view has been taken by one of us that the correct legal position in such circumstances is that once the ex parte decree is finally set aside, that should operate as an automatic revival of the original suit from the appropriate stage, that is, from the stage the ex parte order was made and the plaintiff should be permitted to resume proceedings thenceforward. We agree, with respect, with this view, and furtherthink that the principle underlying this decision should be held to be attracted to a situation like the present. The same conclusion in our opinion could perhaps be come to on the well-settled principle in our jurisprudence that it is one of the first and the highest duties of a Court to take cars that the act of the Court does no injury to any of the suitors before it. . See Rodger v. The Comptoir D'Escompte Pe Paris, (1871) 3 CP 465.
23. In the view we take, the original execution case would stand automatically revived and no difficulty as to limitation need possibly arise. We hold accordingly.
24. This, however, does not conclude the em-tire controversy between the parties in this case.. The other important matters remain to be considered. The first is whether the auction-purchaser should be held to be entitled to recover the purchase-money by an application in execution as sought for in the present case instead of by a suit. The second is that if the answer to the above-question be in the negative, whether the auction-purchaser has, by his conduct in the present case, disentitled himself to the remedy of a suit inasmuch as he was fully cognisant of the fact that respondent Ladulal had before the auction-sale filed a suit for a declaration that he was the-adopted son of Kesharlal, husband of Mst. Gulab, judgment-debtor, and that he was the sole owner thereof and for a further declaration that the property was not liable to attachment and sale in execution of the decree of Mst. Rama against Mst. Gulab, and furthermore, the property in question was proclaimed for and thught to sale subject to that suit.
The contention is that the appellant auction-purchaser was prepared to take the risk of purchasing the property to which a serious claim had been raised by respondent Ladulal who claimed to be the adopted son of the husband of Mst. Gulab, the judgment-debtor and to purchase it subject to the suit and therefore he has hardly any reason to complain if the result of that suit went against him and he cannot lay claim to a refund of the purchase-money in the circumstances of the case.
25. Now so far as the first question is concerned, we are inclined to hold the view in general agreement with the learned single Judge that no remedy is open to the auction-purchaser in execu- tion in such a case. The principal reason which-induces us to take this view is this. We have already referred to Rules 91 to 93 of Order 21 Civil Procedure Code which contemplate a return of the purchase-money only where the sale is sought to be set aside before it is confirmed under Rule 92 We have also referred to the circumstances that the Codes of 1877 and 1882 contained a provision which might have availed the auction-purchaser in this behalf even after the sale had been confirmed, but that provision was deliberately omitted by the Legislature from the present Code.
In this view of the matter, we think that the intention of the Legislature clearly was and is that whatever remedy in the way of the return of the purchase-money is made available to the auction--purchaser under the present Code on the execution side is limited to the situation where the sale has not been confirmed; but once it does stand con-firmed, then, no such return can be made so far as the execution department is concerned. We are also of the opinion that it would be over-straining the provisions of Section 144 or 151 of the Code to press them into use to achieve this result, the more so as we are inclined to the view that save under exceptional circumstances it would be open to the auction-purchaser to bring a suit for the recovery of the auction-money. Under the circumstances, we find ourselves unable to accept the view adopted by Piruji Hazariji v. Amrati, AIR 1944 Sind 233 and other cases which have pursued the same line. As we have already discussed above, the auction-purchaser in such a case would have, on the view which has commended itself to us, to be the better one, a remedy by an independent suit.
26. As for the only other point which now remains to consider, the question is whether the present case is taken out of the general rule which we have enunciated above, because of the two factors, namely, (i) that the auction-purchaser was aware of the suit of respondent Ladulal with respect to the property he had purchased and (2) that the sale had been ordered to be and was actually made expressly subject to Ladulal's suit. We have given our careful consideration to this aspect of the case and think that an auction-purchaser has the right of suit to recover the purchase-money paid by him where he has lost possession of the same at the instance of a third party provided that he does not disqualify or disentitle himself from obtaining such relief which, after all is said and done, is in the nature of an equitable relief. Now, it is admitted by the appellant in the present case that he was fully aware of the suit filed by Ladulal respondent with respect to the property in question which he was prepared to purchase, and, further, that the sale had been proclaimed and conducted and confirmed avowedly subject to that suit. That being so, it seems to us that the appellant can hardly be heard to complain and ask for the return of the purchase money because the suit happened to be decided against him. The position on this aspect of the case clearly seems us to be that he was prepared to purchase the property even at the risk of the suit going against him. Can it be said under the circumstances that be has been inequitably deprived of his money? Our answer to this question is in the negative. As observed in AIR 1932 Lah 401 (FB) (Supra):
' 'The right to maintain such action has been given to the purchaser on equitable grounds; he must therefore bring his case within the rules of equity and his right to recover would be subject to any equitable defence that the decree-holder might be able to advance on the grounds of laches, knowledge of true state of affairs, fraud, etc., on the part of the purchaser.'
With this expression of opinion, we respectfully agree and, therefore, we think that even though OUT conclusion on the general question of law raised in the case is that the dispossessed auction-purchaser would ordinarily have a right to recover his purchase-money by a suit, it must be held in the peculiar circumstances of the present case that the auction-purchaser here had. deprived himself of that remedy by his own over-zealous conduct inpurchasing the property in the teeth of the litigation commenced by Ladulal. That suit having gone against him, he must abide by its consequences. He cannot be allowed to approbate and reprobate or blow hot and cold in the same breath if we may say so. We, therefore, hold that the appellant has forfeited his right to recover the auction-money in the peculiar circumstances of this case and if he stands to lose both the property and the auction-money, the fault is entirely his own and we are unable to help him.
27. For the reasons mentioned above, we hereby dismiss this appeal though we hold that the view of the learned single Judge on the general question of law arising in this case as to the non-maintainability of a suit by the dispossessed auction-purchaser to recover his auction-money by a suit after the confirmation of the sale in his favour is incorrect. Having regard to all the circumstances of the case, however, we would leave the parties to bear their own costs in this Court.