1. I think, that this petition fails. The respondent 1 was the purchaser at Court auction of a plot of land sold in execution of a decree held by the petitioners. The sale proclamation for which of course the decree-holders were mainly responsible, as regards the particulars, stated the extent of the land to be 1 acre and 25 cents. Whereas after the confirmation of the sale, the area was found to be only 78 cents. There is no suggestion that the decree-holders practised a deceit or fraud in so describing the area of the property. But it is certain, as found by the lower Court, that they were grossly negligent. The respondent 1 sued for damages and he has been awarded an amount proportionate to the deficit in the area of the property which passed at the sale. It has to be seen whether he has a remedy by suit. A number of cases have been cited to me to substantiate the petitioners' contention that respondent 1 has no remedy. It is quite certain that he has no remedy under Order 21. Rules 89, 90 or Rule 91 of the Code, for respondent l's case comes within none of these provisions But a recent Full Bench ruling of this High Court in Macha Koundan v. Kottora Koundan, Since-reported in 1986 A.O. No. 54 of 1930, which has apparently not yet found its way into the Reports, has laid down the principle that a right which is enforceable by suit and which has not been expressly taken away by the Code remains unaffected by the particular remedies provided in the Code. The ruling states : 'The right to obtain a refund being recognized by the Code, the remedy by way of suit exists not because the Code gave it, but because every right can be enforced by a suit.'
2. These remarks had special reference to a suit to recover the purchase money where it had been found that the judgment debtor had no saleable interest in the property sold. And it was held that in such circumstances, a suit would lie for money had and received. But I think the Full Bench ruling was intended to have a wider application, and that it is authority for holding that where a right of action exists, a suit is maintainable to enforce that right independently of the special remedies provided by the Code. A material misdescription of property sold, may, without actual fraud, give a right of action to the purchaser to rescind the sale. The purchaser in this (case) was, I think, misled by a very material misdescription of the property and would have a right of action for the loss he has suffered thereby. For these reasons I think that respondent l's suit would lie and it follows that this Civil Revision Petition must be dismissed with costs.