1. This is a suit brought by the plaintiff to recover a sum of Rs. 215 which he paid for the purchase of a certain parcel of land, or, in the alternative, for the return of such portion of this sum as may be proportionate to the extent to which he alleges the consideration had failed. It appears that there was one Kali Charan Sen who obtained a decree against the father of the defendant No. 2. This decree was sold to the defendant No. 1, who applied for execution, and a certain property was sold in execution of that decree, which the plaintiff purchased for Rs. 215. The property was advertised as being 4 kattas and 1 lessa in extent, whereas in the course of a suit subsequently brought by a third person, it was established that only 13 1/2 lessas belonged to the judgment debtor and that was all that the plaintiff had purchased at the execution-sale.
2. The plaintiff now sues to have the sale set aside and the purchase money returned to him.
3. The first Court held that as there had not been a total failure of consideration, the plaintiff was not entitled to any relief, holding that there was no warranty of title, that the sale passed to the plaintiff the right, title and interest of the judgment-debtor, and that, although the right, title and interest of the judgment-debtor was less than what the plaintiff thought he was purchasing, still as the judgment-debtor had a saleable interest in the property, however small, the plaintiff could get no relief.
4. On appeal to the Judge of the Assam Valley Districts, that officer reversed the decision of the first Court and remanded the case to the Munsif 'to calculate what sum should be deducted from the sum of Rs. 215 as the value of the 13 1/2 lessas sold to the plaintiff, and to issue a decree accordingly without interest.'
5. An appeal has now been preferred to us by the principal defendant in this suit, and it is contended that the view of the Judge of the Assam Valley Districts is incorrect and that that of the Munsif is right.
6..A preliminary objection has been taken that no second appeal lies, inasmuch as the suit is one of a Small Cause Court nature and for an amount less than Rs. 500, and our attention has been directed to the case of Prasanna Kumar Khan v. Uma Churn Hazra (1896) 1 C.W.N. 140. That case might, at first sight, appear in favour of the preliminary objection raised before us. But we are of opinion that this suit is not of a Small Cause Court nature, but is one excluded from the jurisdiction of the Small Cause Court by Article 21 of Schedule. II of Act IX of 1887, being a suit to set aside a sale either in whole or in part. The above case seems to be clearly distinguishable from the present one, as that was a case in which there had been a total failure of consideration, the judgment-debtor having been found to have no saleable interest therein. That was a case, therefore, in which it might be said that there was no sale at all, and in which the sale was a nullity, and for that reason the plaintiff in that case was probably held entitled to recover the purchase-money. That case is not on all fours with the present, in which it is clear that the judgment-debtor had a saleable interest in the property. Therefore, the preliminary objection must fail.
7. Turning now to the merits of the case we think that there can be no question that the view of the Judge is incorrect, and that that of the Munsif is right. It appears to us that the rulings, so far as they go, point to the conclusion that when there is a total failure of consideration and the judgment-debtor has no saleable interest whatever in the property, the sale can be set aside and the purchaser can get a refund of his purchase-money. But when the judgment-debtor has a saleable interest, however small, the purchaser purchases at his own risk and there is no warranty that the property will answer to the description given of it. Therefore, it appears to us that the plaintiff is entitled to no relief in this case. That is the rule of law laid down in the case of Sundara Gopalan v. Venkattavarada Ayyangar (1893) I.L.R. 17 Mad. 228; and, so far as we can see, there is no ruling to the contrary effect.
8. For these reasons we must decree this appeal, and setting aside the decree of the lower Appellate Court we must restore that of the Munsif, which we accordingly do with costs in all the Courts.