1. The order under appeal is one dismissing an execution petition by a transferee, a decree-holder, for recovery by sale of certain items of property in which the counter petitioners, respondents, are interested. The decree, one for maintenance, was executable against those items and another No. 11, which was actually brought to sale and purchased by one Umapathy Reddi. This sale was confirmed on 9th April 1913 and the District Munsif made an entry in this diary that satisfaction ; of the decree to the extent of the proceeds was recorded. On 26th February 1914, however, one Veerama Reddi had filed Original Suit No. 15* of 1914 for a declaration that the items sold belonged to him and that the decree charging it and the sale were invalid against him. The defendants originally impleaded were the decree-holder, the judgment-debtor interest ed in the property, who is 6th respondent here, Umapathy Reddi and another person, not concerned in- the present proceedings. Daring the pendency of the suit, the decree-holder died; but as the judgment (which we have called for) shows, plaintiff's Pleader stated that no one need be impleaded as her representative. The suit ' accordingly ended on' 17th December 1914 in a decree, to which only the present 6th respondent and Umapathy Reddi were parties, granting the declaration asked for. Meanwhile, however, on 16th February 1914 or 10 days before the institution of the suit, the present appellant, 6th respondent, and the other respondents, judgment-debtors interested in other items charged by the maintenance decree, had joined with Umapathy Reddi in a' joint statement, which was filed in Court as the basis of an application for (1) recognition of the first mentioned as transferee-decree- holder; (2) an order permitting him to receive the sale-proceeds of item No. 11 which were in Court on furnishing proper security; (3)' execution by him of the decree for the sum of Rs. 50 representing the maintenance doe for the year 13th June 1912 to 13th June1913. This was filed in connection with an application already made by appellant for execution; and the order passed recognised him as transferee, allowed him to take out execution for the amount due up to 13th June 1913 and (unnecessarily) directed him to take farther steps by fresh petition. This order, however, notwithstanding, he was hot impleaded in. Original Suit No. 154 and after judgment therein Umapatby Reddi in Civil Miscellaneous Petition No. 673 of 1915 obtained refund of the purchase-money he had paid, on the ground-that the sale had conveyed nothing to him, without notice being issued to anyone interested in the disposal of the money; ' either to appellant or to any of the judgment-debtors. Appellant has now applied again for execution of the maintenance decree in accordance with the terms of the joint statement above referred to and his application is resisted by respondents, the judgment-debtors other than 6th respondent, on the ground that the money realised by sale of item No. 11 having been available towards the decree amount and having been diverted from its discharge through no fault of theirs and in proceedings to which they were not parties, appellant should be allowed to execute further only after giving credit for the amount thus foregone.
2. The lower Appellate Court's ground of ' decision against appellant was that the judgment in Original Suit No. 154 was obtained behind respondents' backs and cannot bind them, the implication apparently being that they should not be prejudiced by what followed on it. The same argument, however is available in favour of appellant, who also_ was not a party to that judgment.
3. Here the case has been argued also on the ground that the money in Court was available for payment to appellant and that his right to it is still valid, since it can be terminated only by an order for re-payment to the purchaser under Order XXI, Rule 93, Civil Procedure Code, which could not and cannot legally be passed, because the sale has not been set aside* in proceedings of which the persons affected thereby have had notice under Rule 92. Appellant, therefore, is at liberty to recover from the purchaser the money which he has irregularly, been allowed to draw not to execute for the amount a second-time. Contra it is argued that, even if appellant had known of the withdrawal of the money, it would have been futile as. it was not obligatory on him to wait for an application by the purchaser for re payment under Rule 93, which, in view of the result of Original Suit No. 154, he could not have resisted. Of this view the former commend itself. In Mohidin Ibrahim v. Mahamed Meera Levai 17 Ind. Cas. 437 : (1912) M.W.N. 1130, Napier, J., held under the present Code that the anction-purchaser has no longer a substantive right-to recover his money, but with reference to the wording of Rule 93 only a statutery right to get an order in execution proceedings for its re-payment, if he discovers the absence of interest before the confirmation of sale, and he did not do so in the case before as. This conclusion was merely obiter But the point was raised directly and the conclusion was the same in Nannu Lal v. Bhagwan Das 37 Ind. Cas. 9, and the reasoning in these two oases is, in our opinion, correct. On the other hand we have been referred to Parvathi Ammal v. Govindasami Pillai (1916) M.W.N. 797: 2 L.W. 861, in which Napier, J.'s views were criticised, although their correctness was not directly relevant, on the ground that general principles entitle a purchaser who loses the land to recover the purchase-money. But, with all respect, this disregards the fact that Court sales are held without warranty of title and that when, as in the recent case, the purchaser has not availed himself of his - right under Rule 91 to have the gale set aside, there is no reason for relieving him from his loss. Against the decision in Nannu Lal v. Bhagwan Das 37 Ind. Cas. 9 we have been asked to set the earlier decision in the authorised reports of the same High Court, Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 and Prasanna Kumar Bhatta charjee v. Ibrahim Mirza 41 Ind. Cas. 924. But Richards, C.J., who took part in both the Allahabad decisions and delivered the judgment in the latter, stated in doing so that the attention of the Court was not called in the earlier to the alteration in the Code, the effect of which was the basis of Napier, J.'s reasoning and which we regard as decisive of the purchaser's rights. The Calcutta case is no doubt directly in appellant's favour. But the ground of decision was similar to that in Parvalhi Ammal v. Govindasami Pillai (1916) M.W.N. 797: 2 L.W. 861 and is open to similar objection ; and the references to authority in connection with the effect of the change in the law introduced by the present Code are, with all respect, inconclusive. For of the two cases referred to Rustomji v. Vinayak Gangadhar 12 Bom.L.R. 723 : 7 Ind. Cas. 955 was not clearly decided on that Code, the head-note Head note of 35 B, 29--Ed being misleading, since the sale had been held before 1904, when an application for the removal of obstruction was rejected ; and Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 has been dealt with supra. In these circumstances we adhere to the opinion expressed by Napier, J., and eventually by the Allahabad High Court and hold that the purchaser had no right to a refund of the purchase-money, if only because he had not complied with Rule 92 and had the sale set aside.
4. The result is that the money was removed from Court irregularly or illegally without notice to either appellant or respondent, and the question is which of them is to bear the loss. The answer is plain, its owner at the time of its removal, at is not disputed that it belonged to one side or the other; and it is, in our opinion, clear that, quite apart from the Court's order of 9th April 1913 regarding satisfaction already referred to, the legal authority for and the effect of which is doubtful, it belonged to appellant. It re-presented respondent's property, which had been sold for appellants' benefit. Nothing respondents could have done, could have made it payable to them or, after the sale had been confirmed, could have entitled them to restoration of the property. That it was appellant's was recognised by all parties in the joint statement already referred to ; and the only inference from the provision in it for: his giving security before drawing it is that with reference to the pending Original Suit No. 154 he admitted his responsibility to respondents for crediting it in their favour. It was presumably because of his inability to fulfil that obligation that, he delayed in drawing the money and although his delay was not the cause of the irregularity which, effected its removal, if the delay had not occurred, that removal could not have been effected. In these circumstances the money must be regarded as appellant's and respondents' contention must prevail.
5. The lower Appellate Court his over-looked the fact referred to by the District Munsif that appellant is, in any case, entitled to execute against respondents for Rs. 50, the amount settled in the joint statement as due for, the period 13th June 1912 to 13th June 1913. The appeal again it order must, therefore, be allowed to this extent, the lower Appellate Court's order being modified accordingly, the petition being remanded to the District Munsif for re-admission and disposal according to law in the light of the foregoing. The appeal is, in other respects, dismissed. The parties will pay and receive proportionate costs throughout, provision being made for them in the final order.