1. This rule is directed against an order of the learned Additional Judge of Alipur, dated 29th April 1938, under which he dismissed an application which had been filed by the petitioner Amal Chandra Banerjee, in which the latter asked that an execution sale which had been held on 25th February 1937 might be set aside and that he might be allowed a refund of the purchase money which he had paid in his capacity as auction purchaser at the sale. The facts of the case are briefly as follows : Opposite party No. 1 Ram Swarup Agarwalla, obtained a decree in suit No. 1189 of 1935 on the Original Side of this Court. This decree was transferred for execution against the judgment-debtors to the District Court of the 24-Parganas. On 11th September 1936 the decree-holder duly attached some property belonging to the judgment-debtors which comprised premises No. 5, Southern Avenue. He caused a sale proclamation to be issued on 10th January 1937 and on 25th February 1937 the property was put up for sale and purchased by the petitioner subject to certain charges in favour of the Calcutta Improvement Trust and the Equitable Insurance Company Ltd. This sale was confirmed on 31st March 1937 and the petitioner obtained symbolical possession on 19th May 1937.
2. On 25th May 1937, the petitioner was served with a copy of the plaint in a suit which had been instituted by the Calcutta Improvement Trust for the enforcement of their mortgage upon the property and in that plaint there was a statement to the effect that the premises situated at No. 5, Southern Avenue had already been purchased on 8th February 1937 by a firm named Ram Kissen Das Bagri in Execution Case No. 215 of 1936. The petitioner thereupon caused enquiries to be made and he ascertained that the facts stated in the plaint of the Calcutta Improvement Trust were correct and that Ram Kissen Das Bagri was actually in possession of the premises. The petitioner then proceeded on 15th June 1937 to file the petition in the Court of the first Munsif at Alipur to which reference has already been made.
3. As pointed out by the learned Additional Judge it is almost impossible to follow the reasoning of the learned Munsif but, as far as his judgment can be understood, he appears to have treated the petitioner's application as one under Order 21, Rule 91, Civil P.C., and he found that the judgment debtor had no saleable interest in the property sold. The application was filed about three and a half months after the date of the sale but the learned Munsif held that it was not time barred as the petitioner had been prevented by the fraud of the decree-holder from knowing about the earlier sale. He therefore allowed the application and set aside the sale which had been held on 25th February 1937. On appeal the learned Additional Judge held that it had not been established that the decree-holder, Ram Swarup Agarwalla, had committed any fraud. He therefore found that the petitioner was unable to get the benefit of Section 18, Limitation Act, and that the application was time barred. He agreed however with the first Court in holding that the judgment-debtor had no interest in the property after the first sale, which could be described as a saleable interest. In this Court it is admitted that the property sold on 25th February 1937 was identical with that which was sold at the previous sale. It further appears that both the sales were properly held in the course of regular execution proceedings.
4. It is first contended that no appeal lay against the order of the learned Munsif setting aside the sale, on the ground that this order was virtually one under Section 151 of the Code. The difficulty in aceepting this contention is that although the petition to set aside the sale purports to be one under Order 21, Rule 91 and 93, read with Section 151 of the Code, the order which was actually passed by the learned Munsif was one under Order 21, Rule 92 (2) whereby an application under Rule 91 was allowed and the sale was set aside. The law allows an appeal from such an order under Order 43, Rule 1(j). This contention must therefore fail.
5. The position in which the petitioner finds himself is certainly a very difficult one. When he purchased the property on 25th February 1937 he probably had no reason to suppose that there had been any previous sale and there seems to be no reason why his statement should not be accepted that the fact of the previous sale only came to his notice on 25th May 1937 when he was served with a copy of the plaint in mortgage Suit No. 32 of 1937. Nevertheless, as there was no fraud on the part of the decree-holder, he was prima facie debarred on that date from applying to have the second sale set aside, as more than thirty days had elapsed since the date of that sale. At the same time, he had deposited a considerable sum of money in Court as the purchase price of the property sold to him on 25th February 1937, in which it has been found that the judgment-debtor had no saleable interest. This money has been withdrawn by the decree-holder who refused to refund it to the petitioner. The question which arises for consideration in this case is whether an auction-purchaser is entitled to obtain a refund of his purchase money in circumstances such as those which have been disclosed in this case.
6. The learned advocate for the petitioner admits that the only remedy open to the petitioner is by making an application to the executing Court. Whatever may have been the position under the Code of 1882, the law is now clear that a purchaser at a regular execution sale cannot obtain a refund of his purchase money on the ground that the judgment-debtor has no saleable interest unless the sale is set aside. The purchaser is restricted to his remedy by an application under Rule 91, which must be made within thirty days from the date of the sale under Article 166 of the Schedule to the Limitation Act, 1908, followed by an application under Rule 93, which may be made within three years from the accrual of the right under Article 181: Makar Ali v. Sarfaddin (1923) 10 A.I.R. Cal. 85 and Juranu Mahamad v. Jathi Mahamad (1918) 5 A.I.R. Cal. 148 Had the application been filed in time, it is probable that the petitioner would have succeeded in obtaining an order setting aside the sale under E. 92 (2). With regard to this point, it is urged on his behalf that, owing to the unusual circumstances of the ease, the petitioner should have been allowed the benefit bf Section 5, Limitation Act, which provides that certain matters and any other application to which this Section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Even assuming however that the petitioner would have been able to satisfy the requirements of the latter part of the Section, I am nevertheless of opinion that his application is not one to which the Section applies. Section 5, Limitation Act, has been expressly made applicable by law in the case of such applications as those under Order 22, Rule 9, Civil P.C., or those under Section 78, Provincial Insolvency Act, but such is not the case with applications to set aside execution sales under the appropriate Sections of the Civil Procedure Code. The exclusion of these Sections from the operation of Section 5, Limitation Act, is probably deliberate as it is conceivable that much confusion might arise if execution sales could be easily set aside long after the sale proceeds had been distributed to the various parties entitled thereto.
7. The main contention of the learned advocate for the petitioner is that his client's application should have been treated as one under Section 151, Civil P.C., in which case no question of limitation would have arisen in this particular case for consideration. This Section can only be invoked in a case in which it may be necessary for the ends of justice to make an order for which no provision is made elsewhere. The Code is to prevent the abuse of the process of the Court. In my opinion, these conditions are not present in this case. As pointed out by Richardson J., in Juranu mahamad v. jathi Mahamad (1918) 5 A.I.R. Cal. 148 cited above under what we may term the general law apart from statute, 'there is no warranty of title at a court sale.' The legal position with reference to such matter is summarized as follows by the Judicial Committee of the Privy Council in Dorah Ally Khan v. Abdul Azeez (1878) 3 Cal. 806:
Now it is, of course, perfectly clear that when the property has been so sold under a regular execution, and the purchaser is evicted under a title paramount to that of the judgment-debtor, he has no remedy against either the Sheriff or the judgment-debtor. This however is because the Sheriff is authorized by the writ to seize the property of the execution debtor which lies within his territorial jurisdiction and to pass the debtor's title to it without warranting that title to be good.
8. Their Lordships proceed to point out that
what the Sheriff proposes to sell is only the right, title and interest, whatever that may be, of the judgment-debtor.
9. The judgment also contains another passage in which the principle is laid down that
the Sheriff may be held to undertake by his conduct that he has seized and put up for sale the property sold in the exercise of his jurisdiction although when he has jurisdiction he does not in any way warrant that the purchaser had a good title to it or guarantee that the purchaser shall not be turned out of possession by some person other than his judgment-debtor.
10. The position adopted by the learned advocate for the petitioner in this case is that, as his client had no means of knowing that there had been a previous court sale when he purchased the property on 25th February 1937 and had no notice of such sale until 25th May 1937, it would be against reason and conscience to allow then decree-holder, Ram Swarup Agarwalla, to retain the purchase money. In support of his contention he places considerable reliance upon the judgment of Page J. in Rishee Case Law v. Manik Molla (1926) 13 A.I.R. Cal. 971. In that case Page J., seems to have held the view that in certain circumstances an auction-purchaser might even-maintain a suit to obtain a refund of his-purchase money in a case in which the judgment-debtor had no saleable interest. In this respect however I am of opinion that the law has been more correctly stated: in the earlier decisions of this Court cited above Juranu mahamad v. Jathi Mahamad (1918) 5 A.I.R. Cal. 148, Makar Ali v. Sarfaddin (1923) 10 A.I.R. Cal. 85 and a similar view was adopted by the Allahabad High Court in the case of Ram Sarup v. Dalpat Rai Reported in (1921) 8 A.I.R. All. 377 in which the learned Judges accepted the position that, outside the provisions of the Code of Civil Procedure, an auction-purchaser has no right to recover his purchase money merely by showing that the judgment-debtor had no saleable interest. The learned advocate for the petitioner however asks me to apply the principles laid down by Page J. in Rishee Case Law v. Manik Molla (1926) 13 A.I.R. Cal. 971 for the purpose of enabling his client to sustain an application for the refund of his purchase money under Section 151, Civil P.C., If he had been able to show that the-sale which was held on 25th February 1937 was held without jurisdiction, as was the case with the Sheriff's sale with which the Judicial Committee were dealing in Dorah-Ally Khan's case (1878) 3 Cal. 806 cited above, there would-have been some force in his contention. Similarly, the position might have been, different if it had been established that there had been any fraud or misrepresentation on the part of the decree-holder. Here-however we are concerned with a sale properly held in regular execution proceedings-in connexion with which no fraud on the part of the decree-holder or judgment-debtor has been established. In such a case-it is clear from the principles laid down by the Judicial Committee in Dorab Ally Khan's case (1878) 3 Cal. 806 that the maxim caveat emptor must apply, and that being the general law it would, in my view, be improper to allow the petitioner to take advantage of the provisions of Section 151 of the Code merely for the purpose of benefiting from the statutory exception to the general law on this point which is provided in Order 21, Rule 91 to 93, Civil P.C., I must therefore hold that the petitioner is not entitled to obtain a refund of his purchase money and that the decision of the learned. Additional Judge is correct. The rule is therefore discharged. I make no order regarding the costs of this rule.