Alfred Henry Lionel Leach, C.J.
1. These appeals have been filed under Clause 15 of the Letters Patent from a judgment of Chandrasekhara Aiyar, J. They raise an interesting question of law, but in order to appreciate it, we must set out the facts.
2. In O.S. No. 109 of 1921, the fourth defendant obtained a money decree against defendants 1 to 3. In execution of this decree, the fourth defendant attached, as the property of the judgment-debtors, 4.0a. acres of agricultural land, and on the 14th July, 1930, the property was sold by the Court. The plaintiff bought it for the sum of Rs. 2,03,0, which was paid into Court. Defendants 5 to 9 had each obtained a money decree against defendants 1 to 3 and they applied for rateable distribution of the Rs. 2,030. In the month of September, 1931, the money was paid out rateably to them and the fourth defendant.
3. On the 13th August, 1930, the plaintiff had filed an application in the Court which had executed the decree for an order setting aside the sale on the ground that the judgment-debtors had title only to 1.02 acres. This application was dismissed by an order dated 7th July, 1931, and the sale was confirmed by art order dated 17th August, 1931. On the 7th April, 1937, the plaintiff filed the present suit to recover from defendants 4 to 9 proportionately the sum of Rs. 1,992-9-10, which represented the three acres to which the judgment-debtors had no title. It was contended by defendants 4 to 9 that the suit was not maintainable and that in any event it was barred by the law of limitation. The District Munsiff rejected these contentions and decreed the suit. On appeal the Subordinate Judge agreed, as did Chandrasekhara Aiyar, J., in second appeal. The appellants in L.P.A. No. 41 of 1944 are the fourth and seventh defendants. The appellant in L.P.A. No. 69 is the fifth defendant. The sixth and ninth defendants have been made respondents; the eighth defendant is dead. Chandrasekhara Ayyar, J., based his decision on the question of the maintainability of the suit on Mach Koundan v. Kottara Koundan : (1935)69MLJ750 which was decided by a Full Bench of this Court. The appellants say that the learned Judgehas misunderstood the effect ofthat judgment. We aggree that that is so, and we shall proceed to set out our reasons.
4. The Code of Civil Pocedure of 1895 contained no provision for the recovery of the purchase money paid on a Court sale when it turned out that the judgment debtor had no right, title or interest in the property. When that Code was replaced by the Code of 1882 the Legislature recognised the injustice of allowing the decree holder to retain the purchase consideration when it was shown that the judgment debtor had no intereest whatsoever in the property sold, and consequently provided that when it was proved that there hadd been a total sale and direct the repayment to him of the purchase money.These provisions were contained in Sections 313 and 315, and thry are embodied in Order 21 Rules 91, 92 and 93 of the present Code. Sub-rule (3) of Rule 92 contains a provision which was not found in the Code of 1882. It says, ' No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.' Therefor, so far as the Code is concerned, therer is machinery for the recovery of the purchase money when it is proved that the judgment-debtor had no saleable interest in the property.
5. In Sundaragopalan v. Venkatavarada Iyengar (1893) 3 M.L.J. 293 : I.L.R. 17 Mad. 228, Muttuswami Ayyar, J., held that there could be no application for a refund unless it was established that the judgment debtor had no right, title or interest int he property. The implied warranty of title in respect of sales by private ncontract could not be extended to Court sales except in so far a the extension was justified by the Code of Civil Procedure. A distinction was, however, made when there had been fraud. This judgment was followed by the Calcutta High Court in Sonaram Dass v. Mohiram Dass I.L.R.(1900)Cal. 235, and by the Allahabad High Vourt in Shanto Chander Mukherji v. Nainsukh I.L.R. (1901)All. 355. In Nagalinga Chettair Iyer : AIR1930Mad856 , this Court applied the same principle in a case where two items of property had been sold in one lot and it was subsequently found that the judgment-debtor had no title to one of the items.
6. We will now turn to Macha Koundan v. Kottara Koundan : (1935)69MLJ750 . There the property was sold m execution of a mortgage decree and it was subsequently discovered that the mortgagor had no interest at all in the mortgaged property. The question was whether the auction-purchaser had in addition to the right given to him by Order 21, Rule 91 a right to file a suit to recover what he h|d paid. The Full Bench (Beasley, C.J., Ramesam, J and King, J.) held that a suit did lie. In delivering the judgment of the Court, Ramesam, J., pointed out that the Legislature had recognised a right in the auction purchaser to a refund of the money paid if the judgment-debtor's interest in the property turned out to be nothin/ The right having been recognised and there being nothing in the. Code to prohibit a suit for the recovery of the purchase money when there had been a total failure of consideration a suit lay under the general law. The Court was considering a casewhere there had been a total failure of consideration and their judgment cannot in our opinion be read as laying down that there is a right of suit in a case of partial failure of consideration.
7. In the course of his judgment, Chandrasekhara Aiyar, J., observed that once it was conceded, that there was a right of suit to recover money paid under circumstances which apply here, apart from the summary remedy provided by the Code of Civil Procedure, which was confined only to cases where the sale was set aside on the ground of want of any saleable interest, it was difficult to understand why the remedy should be deemed to exist only when there was a total failure of title and not when there was a partial failure., He went oft to express the opinion that the judgment of the Full Bench was authority for the proposition that where there has been a failure of consideration in respect of a part of the property sold a suit will lie. There is nothing in the judgment of the Full Bench to support this opinion and we refuse to extend the principle there laid down to a case where the purchaser would have no remedy under the Code of Civil Procedure. It must be borne in mind that there is ho warranty of title in a Court sale. If the judgment-debtor has no interest in the property sold the sale can be set aside, but the Code says that if the judgment-debtor has some interest in the property auctioned the sale must stand. It has been stressed in the course of the arguments to-day that where there is an injury there must be a remedy. We agree, but the answer here is that there has been no injury. What the executing Court put up for sale was a plot of agricultural land in which the judgment-debtors admittedly had an interest and their interest, passed to the plaintiff.
4. For these reasons we hold that the suit did not lie and must be dismissed. In the circumstances it is not necessary for us to consider the question of limitation.
5. The appellants will have separate sets of costs against the plaintiff-respondent in this Court, before Chandrasekhara Aiyar, J., and in the Subordinate Judge's Court as there were two appeals in each of those Courts. The plaintiff-respondent will also pay one set of costs in the trial Court to be divided amongst the contesting defendants.