1. This second appeal is by the plaintiff in Title Suit No. 34/1949 of the First Court of the Munsif at Howrah, against the judgment and decree passed by the learned Subordinate Judge, Second Additional Court, Howrah, dismissing the appeal preferred by him against the judgment and decree of the said learned Munsif, dismissing the above suit. The facts of this case lie within a narrow compass and may be stated as follows:
2. Respondents Nos. 12 and 13 used to hold a Jama of Rs. 20/7/- and odd under the co-sharer landlords, Respondents Nos. 1 to 11. The plaintiff-appellant auction-purchased the said holding in the sale held on 18-11-46 in Rent Execution case No. 73/1946, started by some of the co-sharer landlords, namely, Respondent No. 1 and Late Bejoy Krishna Mookerjee, predecessor of Respondents Nos. 2 to 4, in execution of the decree obtained by them on 11-6-43 in Rent Suit No. 142/1942. The said sale was confirmed on 19-12-46. But it appears that another co-sharer landlord, namely, Anath Nath Goswami, Respondent No. 5, had previously instituted a Rent Suit (No. 453/1940) and in execution of the decree obtained therein on 20-1-41, himself auction-purchased the holding on 20-6-44 and the said sale was confirmed on 26-8-44. On coming to learn of the previous auction-purchase of the holding by the said co-sharer landlord, Anath Nath Goswami, the plaintiff, applied under Order XXI, Rule 91 of the C. P. C. for having set aside the said sale, on the ground that the said judgment-debtors, namely, Respondents Nos. 12 and 13, had no saleable interest in the property at the date of his auction-purchase. On 16-7-47 a Miscellaneous proceeding, being Misc. Case No. 154/1947, was started on the basis of the said application and the said case was eventually dismissed on 17-6-48 on the ground of limitation.
3. Being baffled thereby, the plaintiff instituted the instant suit (T. S. 34/1949) for getting a declaration that the sale held in Rent Execution Case No. 73/1946 was null and void as the judgment-debtors in the said proceeding had no saleable interest in the property on the date of the auction-sale, and that this fact was fraudulently suppressed by the decree-holders, namely, Respondent No. I and the predecessor of Respondents Nos. 2 to 4, and for refund of the purchase money deposited by the plaintiff in the above execution case.
4. The suit was contested by the defendants, Respondents Nos. 1 to 4. Their defence, in substance, was that the suit was barred under Order XXI, Rule 92(3) of the Code of Civil Procedure and it was denied that any fraud was practised by the contesting defendants on the plaintiff in relation to the holding of the said sale.
5. Admittedly, the rest of the co-sharers were not impleaded in either of the two Rent suits mentioned above and the learned Munsif dismissed the suit remarking that though the extent of the share of the decree-holders in the suit property and the amount of the Jama were not correctly stated in the sale proclamation issued and served in the Rent Execution Case No. 73/46, these two material omissions in the sale proclamation might have been due to bona fide mistakes on the part of the decree-holders and that there was nothing to show that the decree-holders had any fraudulent intention or that these omissions were deliberately done in order to defraud the public including the present plaintiff. On appeal, the learned lower appellate court affirmed the decree of dismissal passed by the learned Munsif. The learned Subordinate Judge held that the plain-tiff had totally failed to prove a case of fraud or misrepresentation and therefore, the suit was not maintainable. The learned Subordinate Judge was further of the opinion that the suit for refund of the purchase money was also not maintainable on equitable grounds.
6. At the time of hearing of this appeal it was conceded by the learned Advocate appearing for the appellant that the suit for setting aside the sale on the ground that the judgment-debtors had no saleable interest in the property at the date of the sale, was not maintainable in view of the express bar imposed under Sub-rule (3) of Order XXI, Rule 92 of the Code of Civil Procedure. The law on this point is also clear and it has been consistently held by this Court that a suit of the like nature is not maintainable in view of the provisions of Order XXI, Rule 92(3) of the Code of Civil Procedure. It has no doubt, been held in some cases that a suit of this nature is maintainable on the ground of fraud; but the concurrent findings of the courts below are that the plaintiff had failed to establish that he was induced to purchase the property by fraud practised on him by Respondents Nos. 1 to 4.
7. The question that has been raised on behalf of the plaintiff-appellant in this appeal is whether the auction-purchaser can maintain a suit for refund of the purchase money on the ground that the judgment-debtor had no saleable interest in the land at the date of the sale in question. The purchaser at an execution sale was held entitled to have a statutory right under Section 315 of the Code of Civil Procedure of 1882, to receive back his purchase money from the person to whom the money was paid, even when it was found in a separate suit that the judgment-debtor had no saleable interest in the property. The provisions of Section 315 of the Code of 1882 were repealed by Order XXI, Rule 93 of the Code of 1908. It now seems to be well settled that as the law now stands, except under the Code of 1908, a suit for refund of purchase money on the ground that there was no saleable interest of the judgment-debtor in the property sold, is not maintainable at the instance of the auction-purchaser. Under Order XXI, Rule 93 of the Code of Civil Procedure, a purchaser's right to refund arises only in the event of the sale being set aside under the preceding Rule 92. In Juranu Mahamed v. Jathi Mahamed 22 Cal. WN 760 : (AIR 1918 Cal. 148) it has been held by this court that the Code confers no right to bring a suit either directly or constructively, and if such a suit is instituted it must be held to be incompetent This decision was also followed by this Court in Banka Behary Das v. Gurudas Dhar : AIR1924Cal172 . In the said case B. B. Ghosh, J. explained away the contrary decision in this respect given in Prasanna Kumar Bhattacharya v. Ibrahim Mirja, 36 Cal. LJ 205 : (AIR 1918 Cal. 505) by saying that the case of 36 Cal. LJ 205 : (AIR 1918 Cal. 505) was based on the decision in Rustomji Ardcshir v. Vinayak Gangadhar, ILR 35 Bom 29, which was no authority on the question where a sale was held under the Code of 1908. In : AIR1924Cal172 , their Lordships preferred to follow the decision of this Court in 22 Cal. WN 760 : (AIR 1918 Cal. 148).
8. It has been urged that such a suit forrefund will be maintainable on the ground of fraud.But we have closely looked into the plaint and itmust be said that there is no such averment of fraudin the plaint by which the plaintiff was induced topurchase the property. The findings of the courtsbelow in this respect, as we have already statedabove, are also that the plaintiff had failed to establish any such case of fraud. No doubt, the decree-holders gave incorrect descriptions of the propertyin the sale-proclamation by omitting to state correctlythe annual rent payable for the property and thefact that they were only co-sharers landlords. But)even so, such omissions in the descriptions cannotcertainly be held to be instances of fraud whichwould entitle the auction-purchaser to have the saleset aside.
9. In Raja Risheecase Law v. Manik Molla, ILR 53 Cal. 758 : (AIR 1926 Cal. 971) Page, J. observed that in his opinion the effect of Order XXI, Rule 93 was that the only method under the Code by which an auction-purchaser at a Court-sale was entitled to obtain refund of the purchase money, was by applying to set aside the sale as therein provided. The statutory right granted specifically in this respect under Section 315 of the old Code of 1882 was superseded by the Code of 1908. But it has been further observed by Page, J. at page 763 (of ILR Cal) : (at p. 973 of AIR).
'....but in a case where the property in which the judgment-debtor has no saleable interest, has been purchased in execution of a decree, and the circumstances are such that in accordance with the equitable Rules obtaining in that behalf, it would be against reason and conscience that the person to whom the purchase price has been paid should retain the purchase money as against the auction-purchaser, the auction-purchaser is entitled to recover such money, as money had and received to his use. If he did not possess such right he might be exposed to loss resulting from fraud or collusion at the sale between the execution creditor and the judgment-debtor, and yet remains without redress. But against the loss sustained in such circumstances, the law does not leave him defenceless; the auction-purchaser may recover the purchase price which he has paid, if he can bring himself within the equitable principles which justify a suit for money had and received, upon the ground that it is unconscionable that the defendant should retain the money as against the plaintiff.'
In that case, however, it was held that no misrepresentation or fraud or privity of contract were or could have been suggested in the circumstances of the said case as founding any legal or equitable cause of action for recovery of the purchase price that has been paid by the plaintiffs. Therefore, it is clear from the above observations that such equitable doctrines could be invoked only in the case of fraud. The above view also finds support from a single Bench decision of this Court in Amal Ch. Banerjce v. Ramswarup Agarwalla : AIR1939Cal310 .'
10. The learned advocate for the appellant, however, strongly relied on a decision of this court In Chaitanyadas v. Ranjit Pal : AIR1938Cal263 , in support of his contention that even in the instant case the plaintiff-auction-purchaser would be entitled to get refund of the purchase money on equitable grounds. It has, therefore, become necessary to examine that case in some detail. In the said case One Hari-pada Ghosh, predecessor-in-interest of defendant No. 2, held the disputed land as a Mokarari tenant under defendant No. 1. He transferred his interest in the entire land to the defendant No. 3 in December 1922 and in April, 1923 the landlord-defendant No. 1 instituted a rent suit against Haripada for recovery of arrears of rent. Defendant No. 3 was not made a party in that case although a portion of the rent claimed accrued due after the transfer. The suit was decreed against Haripada in July, 1923. There was a proceeding for enhancement of rent at the instance of the landlord, under Section 105 of the Bengal Tenancy Act and in that proceeding defendant No. 3 was made a party. A compromise was put in in that proceeding by which the landlord (defendant No. 1) recognised the Mokarari character of the holding and also recognised defendant No. 3 as a tenant in respects of the same. But it appears that in 1926, the rent decree, mentioned above, was put into execution, without impleading defendant No. 3 in the execution proceeding and the holding was put up to sale and eventually auction-purchased by the plaintiff in August, 1926. Therefore, it will appear that although the landlord, defendant No. 1, fully knew about the transfer of the entire holding to defendant No. 3, he intentionally suppressed the fact when he put the decree into execution in the above proceeding. It was accordingly, contended on the plaintiffs side that he was thus induced to purchase the property solely by reason of fraudulent mis-representation made by defendant No. 1. On that basis the trial Court held that defendant No. 1 was guilty of fraud in the facts and circumstances of the case and decreed the suit. The learned lower appellate court came to a different view, reversed the decision of the learned Munsitf and dismissed the plaintiff's suit.
11. Mookerjee, J., who delivered a separate judgment in : AIR1938Cal263 , observed at p. 523 (of ILR Cal) : (at p. 268 of AIR) that the learned lower appellate court was undoubtedly right in saying that, as the law stood at present, a suit for refund of purchase money on the ground that there was no saleable interest of the judgment-debtor in the property sold, dad not lie at the instance of the auction-purchaser; but he was of the view, as expressed at p. 529 (of ILR Cal): (at p. 270 of AIR), that if the decree-holder stated something which was false and made that statement knowing it to be false, with a view to misleading the bidders there would be obviously a case of fraud. We have pointed out above that in the said case although the decree-holder was a party to the compromise in the Section 105 proceeding and was fully cognisant of the fact that the old tenants had no vestige of interest in the holding, put the holding upto sale describing the same falsely as the property of Haripada. Therefore, in the facts and circumstances of the case rules of equity were rightly invoked and the appeal was allowed, the judgment and decree of the lower appellate court were set aside and that of the trial court restored. The learned advocate for the appellant, however relied on an observation of Mookerjee, J., in the above case at p. 529 (of ILR Cal): (at p. 270 of AIR) to this effect:
'But even when the misrepresentation was innocent or there was mistake or ignorance of facts under which the parties were labouring, which led to the invalidity of the whole proceeding, a fiction of promise to pay can, in my opinion, be justly imputed to the decree-holder and it would be against natural justice to allow him to retain the money which he got possession of under such ignorance or mistake.'
We must say with respect that the said observation of the learned Judge appears to be in conflict with his earlier observations as mentioned above and must also be treated as a mere expression of opinion of the learned Judge as the facts of the above case were quite otherwise. We may mention that in Dibyendu Prosad v. Latikarani Mitra, ILR 1948-1 Cal 479, this Court relied on the case of : AIR1938Cal263 , as an authority for the proposition that a suit for refund of purchase money was maintainable where there was fraud on the part of the decree-holder, and possibly also where there was misrepresentation on his part.
12. It is not necessary for our present purpose to notice the decisions on this point, given by the other High Courts which are rather conflicting, in view of the trend of the decisions of this Court on the point, as discussed above. There is nothing to show that the decree-holders (defendant No. 1 and the predecessor of defendants Nos. 2 to 4) were guilty of any fraudulent conduct in relation to the execution proceeding which might entitle the plaintiff-auction-purchaser to invoke the equitable doctrines mentioned above. There is no evidence that the decree-holders were even aware of the previous execution proceeding at the instance of Ananthnath Goswami and the subsequent auction-purchase of the property by the latter.
13. For the reasons stated above, this appeal must be and is dismissed with costs.
S.K. Sen, J.
14. I agree.