B.B. Ghose, J.
1. The plaintiff, who was the auction-purchaser at a sale in execution of a decree for rent, sued both the decree-holder and the judgment-debtor for refund of the purchase money and also for compensation on certain allegations made in the plaint. The suit was decreed in the primary Court against both the defendants. On appeal by the decree-holder defendant, the learned Judge has dismissed the suit holding that it was not maintainable. The plaintiff appeals to this Court and two questions have been raised on his behalf : (1) - Whether a suit for refund of purchase money is maintainable by the auction-purchaser on the ground that the judgment-debtor had no saleable interest in the land and (2) whether the suit is maintainable on the ground of fraud of the defendants. With regard to the first question, the learned Vakil for the appellant has placed before us all the cases decided by the different High Courts with reference to sales held after the Code of Civil Procedure of 1908 came into operation. He admits that the general view is that such suits are not maintainable. It is only necessary to refer to the latest cases which are Ram Sarup v. Dalpat Rai A.I.R. 1921 All. 377, Balvant Ragunath v. Bala A.I.R. 1922 Bom. 205, Tirumalaisami Naidu v. Subramanian Chathar  40 Mad. 1009, Juranu Mohammed v. Jathi Mohammed  22 C.W.N. 760. He, however, relies on two cases in support of his contention that such a suit is maintainable, namely, the cases of Rustamji Ardeshir Ivani v. Vinayak Gangadhar Bhat  35 bom. 29 and Prosanna Kumar Bhattacharjee v. Ibrahim Mirza  36 C.L.J. 205. The case reported in 35 Bom. 29 :  35 Bom. 29 was under the Civil Procedure Code of 1882 as pointed out by the learned Chief Justice in Balvant Ragunath's case A.I.R. 1922 Bom. 205. The only case then in which a discordant note was struck is that reported in 36 C.L.J. 205. That case, however, was based on the decision reported as Rustamji v. Vinayak  35 Bom. 29 which is no authority on the question when the sale was held under the Code of 1908. We must, therefore, follow the later case in our Court reported in 22 C.W. N. 760 which is in agreement with the decision of all the other High Courts and hold that such a suit is not maintainable.
2. The learned Vakil for the appellant further contends that there is a difference between the present case and the others, as, in the present case the sale was a sale in execution of a rent decree and there is a warranty of title in the case of such a sale. The authority cited in support of this proposition is the decision in Abdul Bawan v. Nekhar Mandal  17 C.L.J. 652. That case, however, does not lay down any such rule, as it decides merely a question of estoppel by representation. That there is no such distinction as regards warranty will be apparent from the fact that the proclamation of sale which haw to be published is in the same terms in both classes of cases. The difference in the rights acquired by purchasers in execution of decrees does not affect the question as regards warranty of title.
3. Before parting with this question I must observe that the plaintiff does not state that the judgment-debtor had no saleable interest, the allegation being to the effect that the plaintiff purchased only the right, title and interest of the judgment-debtor and not the holding free from all encumbrances as in a rent sale. On that allegation, the question discussed does not arisg and the plaintiff's suit is not maintainable on any ground whatsoever.
4. With regard to the second point, the matter of fraud was not investigated by the learned Judge in appeal and the appellant asks us for a remand of the case for retrial on that ground. The learned Vakil for respondents contends that assuming that such a suit on the ground of fraud is maintainable, there is no such averment of fraud in the plaint by which the plaintiff was induced to purchase the property, and there is nothing to be enquired into; although the words 'fraud' and 'collusive' have been used several times in the plaint, if those words are struck out the facts alleged do not disclose any fraud which would entitle the plaintiff to maintain this action nor was any issue raised on that question. Reference has been made in this connection to the case of Ganga Narain Gupta v. Taluckram Chowdhury  15 Cal. 537 where Lord Watson quoted the well known dictum of Lord Selborne on that question. The appellant urges that, although no issue was raised, the Trial Court decided the question of fraud, and the defendants cannot be said to have been prejudiced or taken' by surprise. The Trial Court, however, seems to have decided two points on the facts alleged in the plaint. First, that in the rent suit the defendant No. 2 who was a grandson of the recorded tenant did not represent the entire body of tenants deriving title from the recorded tenant and secondly, that the enhanced rate of rent claimed by the landlord in his suit was not bona fide as the defendant No. 2 had no authority to agree to an enhancement on behalf of all the tenants, and this enhancement was made by the landlord in collusion with defendant No. 2. These findings can hardly be said to be findings of fraud which would entitle the auction-purchaser to have the sale set aside. I have examined the plaint and there is no allegation in it beyond those which have been found by the Munsiff. It seems to me clear that these findings were not considered to be findings on any question of fraud by the parties in the lower Appellate Court as it does not appear that the Lower Appellate Court was asked to come to any finding on the question of fraud. This ground also, therefore, fails.
5. The appeal must, therefore, be dismissed with costs.
6. I agree.