1. The facts antecedent to this case are thus summarised by the learned District Judge: 'The first defendant's late husband obtained a decree against two persona, Munisami and Arumugam, and attached certain property and brought it to sale on 20th August 1906. The plaintiff purchased certain items and paid the money which was applied to the decree In rate able distributions. A third party then sued the plaintiff and from defendant's late husband. The suit was dismissed in 1907, but the first appeal was allowed in 1910 and the second appeal confirmed this in 1912. It was declared that the judgment debtors had no saleable interest; and the sale was, therefore, set aside.
2. On this, plaintiff sued to recover from first defendant, as the representative of her late husband, the portion of the sale price paid by him, which had been paid over to her husband in rateable distribution. The District Munsif dismissed the suit as not maintainable. The District Judge, on appeal held that the suit was maintainable and remanded it for disposal on its merits. Against this the present appeal is preferred.
3. The sole question is, whether the suit will lie. Mr. Govindaragava Aiyar for appellants draws our attention to the difference between Section 315 of the old Civil Procedure Code and the corresponding provision of the present Code, (Order XXI, Rule 93) and argues that under the present Code where the judgment-debtor is found to have no saleable interest in the property sold, the auction purchaser has no remedy at all except in cases were he himself applies under Rule 91 within the prescribed time to have the sale set aside. As authority he relies on the judgment of Napier, J, in Mohideen Ibrahim v. Mahamed Meera Levvai 17 Ind. Cas. 437and of a later Bench of this Court in Tirumalaisami Naidu v. Sulra-maniam chdttiar 40 M. 1009 If the question has to be decided solely with reference to the provisions of the present Code these cases are certainly authority for Mr. Govinda ragava Aiyar's contention, though we desire to guard ourselves against expressing concurrence (as at present advised) in the conclusions therein arrived at. It is, however, unnecessary for us now to decide the somewhat difficult question of the position of the auction-purchaser in such cases, because there is an important differentiating factor in the case before us. The sale with which we are concerned was held in 1906 under the old Code and that Code declared that, when it is found that the judgment-debtor has 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 whom the purchase-money has been paid.' (Section 315). Plaintiff in the present case would undeniably have been entitled to the right thus declared if the old Cods had remained in force and, in our opinion, he is not deprived of its benefit by reason of the suppression of that Code by the present amount. The sale was held under the Civil Procedure Code of which the section above quoted was a part: this was in effect one of the conditions of sale and a most important one at that. As already stated, we do not propose to discuss the state of affairs under the present Code. But ii cannot be denied that the right of an auction purchaser to recover bask his money where it turns out that the judgment debtor had no interest in the property is a very potent factor in determining the amount a reasonable man would bid. The absence of such a remedy and the consequent necessity of guarding himself against the risk of total loss of his money must tend to make a prudent man limit his bidding to something materially below what he may estimate to be the market value of the property. In that present case plaintiff must be taken to have made his bid in reliance on the guarantee of remedy in a certain eventuality given him by Section 315 of that Code then in force and he is, in our opinion, both equitably and legally entitled to the benefit of that provision in spite of the fact that the Legislature did not choose to reproduce it in the present Code, which governs the sales that take place after its enactment. It is true that the absence of saleable interest in the judgment debtor was not declared till 1910. but this is immaterial, He is none-the-less entitled to the benefit of the express declaration of the law under which he purchased, that in a certain eventuality he should have his remedy. We think the decision of their Lordships of the Privy council in Colonial Sugar Beijing Co. v. Irving (1995) A.C. 369 is very mush in point in this connection. To quote the words of Lord Maonaghten this is more than a 'Batter of procedure, it touches a right in existence at the time of the passing of the About. We do not think the case relied on by appellants Vakil, Abbott v. Minister of Lands 64 L.J.P.C. 167 , has any bearing on the question. That base turned on the right to exercise an option, which was not in fast exercised until the law conferring it was abrogated. The right to recover in a certain eventuality claimed in the present case was a right which accrued the moment plaintiff paid the sale price.
3. The conclusion we have taken on this point is identical with that arrived at by the learned Judges in Tirumalaisami Naidu v. Subramaniam chettiar 4 Ind. Cas. 109 .
4. We dismiss the appeal with costs of first respondent.