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Makar Ali Vs. SarfaddIn and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal85,70Ind.Cas.606
AppellantMakar Ali
RespondentSarfaddIn and ors.
Cases ReferredRajah of Pittapur v. Gani Venkata Subba Row
Excerpt:
civil procedure code (act xiv of 1882), section 315 - civil procedure code (act v of 1908), order xxi, rules 91, 93--general clauses act (x of 1897), section 6--execution sale confirmed under old code--judgment-debtor found to have no saleable interest--suit for repayment by purchaser after operation of new code--law applicable. - 1. this is an appeal by the plaintiff in a suit for recovery of possession of immoveable property purchased by him at an execution-sale, or, in the alternative, for recovery of the money paid by him as purchaser at such sale. the trial court dismissed the suit, and that decree has been affirmed by the district judge on appeal. the facts material for the determination of the questions of law raised before us are no longer in controversy and may be briefly recited. on the 18th september 1904 the fifth defendant mortgaged the disputed property to the sixth and seventh defendants to secure a loan of rs. 100 which was made repayable on the 12th february 1905. on the 14th june 1907 the mortgagees sued the mortgagor to enforce the security. the claim was contested by the mortgagor in his written.....
Judgment:

1. This is an appeal by the plaintiff in a suit for recovery of possession of immoveable property purchased by him at an execution-sale, or, in the alternative, for recovery of the money paid by him as purchaser at such sale. The Trial Court dismissed the suit, and that decree has been affirmed by the District Judge on appeal. The facts material for the determination of the questions of law raised before us are no longer in controversy and may be briefly recited. On the 18th September 1904 the fifth defendant mortgaged the disputed property to the sixth and seventh defendants to secure a loan of Rs. 100 which was made repayable on the 12th February 1905. On the 14th June 1907 the mortgagees sued the mortgagor to enforce the security. The claim was contested by the mortgagor in his written statement, but, ultimately, a decree was made by consent on the 13th November, 1907. The decree was executed in due course, and at the sale which followed, the plaintiff, a stranger to the suit, became the purchaser for a sum of Rs. 190. The sale was confirmed and the sale certificate was granted on the nth December 1908. Symbolical possession was thereafter delivered to the purchaser on the 28th March 1909. She was unable, however, to obtain actual possession and was thus constrained to commence the present litigation on the i6h April 1917. The claim for possession was controverted by the first defendant, who urged that neither the fifth defendant nor his mortgagees nor the plaintiff ever had any title to the disputed land, and in this defence he was supported by some of the other defendants. The Courts below have concurrently found that the fifth defendant had no title to the land at any time, and that, consequently, the mortgage as also the execution-sale based thereon had passed no title to the plaintiff. In this view, the claim for possession put forward by the plaintiff has been negatived. The alternative claim for recovery of the purchase-money from the sixth and seventh defendants has been dismissed on the ground that the only remedy of the plaintiff is by an application under Order XXI, Rule 93, read with Rule 91, of the Civil Procedure Code, 1903, and that a regular suit is not maintainable for the purpose. The plaintiff has now appealed to this Court and has argued that the decision of the District Judge is erroneous on two grounds, namely, first that under the Code of 1908, as under the Code of 1882, a regular suit may be maintained by an execution-purchaser to recover the purchase-money on the ground that the judgment-debtor had no saleable interest in the property sold, and, secondly, that, if under the Code of 1908 the law be deemed to be different from what it was under the Code of 1882, the provisions of the latter Code should be applied to the present case, as they were in force on the date when his purchase became absolute under Section 312 and Section 314 of that Code.

2. For the determination of the first question, a comparasion between the relevant provisions of the Codes of 1882 and 1908 is essential. Sections 313 and 315 of the Code of 1882 were as follows:

313. The purchaser at any such sale may apply to the Court to set aside the sale, on the ground that the person whose property purported to be sold had no saleable interest therein, and the Court may make such order as it thinks fit:

Provided that no order to set aside a sale shall be made unless the judgment-debtor and the decree-holder have had opportunity of being heard against such order.

315. When a sale of immoveable property is set aside under Section 310-A, 312 or 313, or when it is found that the judgment-debtor had 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.

The re-payment of the said purchase-money and of the interest (if any) allowed by the Court, may be enforced against such person under the rules provided by this Code for the execution of a decree for money.

3. Rules 91 and 93 of Order XXI of the Code of 1908 are as follows:

91. The purchaser at any such sale in execution, of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

93. Where a sale of immoveable property is set aside under Rule 92, the purchaser shall be entitled to an order for re-payment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.

4. It will be observed that the second and fourth paragraphs of Section 315 are not re-produced in Rule 93, while the words 'shall be entitled to receive back' which occurred in the third paragraph of Section 315 are re-placed by the words 'shall be entitled to an order for re-payment' in Rule 93. The defendants-respondents have contended that these changes indicate a substantial alteration in the pre-existing law.

5. Under the Code of 1882 it had been held that a purchaser could not only obtain repayment of his purchase-money when the sale was set aside upon his application under Section 313, but that he might also maintain a suit against the decree-holder for recovery of his purchase-money, if it should so happen that the judgment-debtor had no saleable interest whatever in the property sold. The existence of the alternative remedy by suit was inferred from the provision in the second paragraph of Section 315 and from the use of the words 'may be enforced' in the fourth paragraph of that section. The matter was elaborately examined by a Full Bench of the Allahabad High Court in Munna Singh v. Gajadhar Singh 5 A. 577 : A.W.N. (1883) 130 : 3 Ind. Dec. (N.S.) 491 where it was ruled that a purchaser at a sale in execution of a decree was competent to maintain a suit against the decree-holder for recovery of his purchase-money when the judgment-debtor was found to have had no saleable interest in the property sold; the purchaser was not restricted to the special procedure in the execution department, mentioned in Section 315. This view was followed in Kishun Lal v. Muhammad Safdar Ali Khan 13 A. 383 : A.W.N. (1891) 138 : 7 Ind. Dec. (N.S.) 244; Sidheswari Prasad Narain Singh v. Mayanand Gir 19 Ind. Cas. 986 : 35 A. 419 : 11 A.L.J. 606; Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 : 36 A. 529 : 12 A.L.J. 908; Girdhar Das v. Sidheshwari Prasad Narain Singh 44 Ind. Cas. 697 : 40 A. 411 : 16 A.L.J. 236. A similar view was adopted by the Bombay High Court in Gurshidawa v. Gangaya 22 B. 783 : 11 Ind. Dec. (N.S.) 1106. The identical principle was approved in this Court in Hari Doyal Singh Roy v. Sheikh Samsuddin 5 C.W.N. 240; Nityanund Roy v. Juggat Chandra Guha 7 C.W.N. 105 and Ram Kumar Shaha Paddar v. Ram Gour Shaha Chowdhuri 2 Ind. Cas. 559 : 37 C. 67 : 10 C.L.J. 558 : 13 C.W.N. 1080. The same construction was placed upon the Code by the Madras High Court in Pachayappan v. Narayana 11 M. 269 : 12 Ind. Jur. 92 : 4 Ind. Dec. (N.S.) 187 Nilakanta v. Imam-sahib 16 M. 361 : 3 M.L.J. 134 : 5 Ind. Dec. (N.S.) 958; Mohideen Ibrahim v. Mahamed Meera Levvai 17 Ind. Cas. 437 : 23 M.L.J. 487 : 12 M.L.T. 431 : (1912) M.W.N. 1130 and Tirumalaisami Naidu v. Subramaniam Chettiar 45 Ind. Cas. 109 : 40 M. 1009. This, then, was the accepted interpretation of the provisions of the Code of 1882, ^though there might have been now and then a note of hesitation and even of dissent; Kishun Lal Muhammad Safdar Ali Khan 13 A. 383 : A.W.N. (1891) 138 : 7 Ind. Dec. (N.S.) 244 Sidheswari Prasad Narain Singh v. Mayanand Gir 44 Ind. Cas. 697 : 40 A. 411 : 16 A.L.J. 236; Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 : 36 A. 529 : 12 A.L.J. 908; Sundara Gopalan v. Venkatavarada Ayyangar 17 M. 228 : 3 M.L.J. 293 : 6 Ind. Dec. (N.S.) 158. It was further held that an, application under Section 313 to set aside the sale, was required to be made within sixty days from the date of the sale under Article 173 of the Second Schedule to the Indian limitation Act, 1877; Haji v. Atharaman 7 M. 512 : 2 Ind. Dec. (N.S.)939. That Article, however, as pointed out in Sivarama v. Rama 8 M. 99 : 3 Ind. Dec. (N.S.) 70, would not apply to an application under Section 315 for refund of the purchase-money, such an application was governed by Article 178, which enacted that an application for which no period of limitation was provided elsewhere in the Schedule, could be made within three years from the date when the right to apply accrued; Girdhari v. Sital Prasad 11 A. 372 : A.W.N. (1889) 113 : 6 Ind. Dec. (N.S.) 665. On the other hand, a regular suit, instituted by the auction-purchaser under Section 315, would be covered by Article 120 which provided that a suit for which no period of limitation was provided elsewhere in the Schedule could be instituted within six years from the date when the right to sue accrued; Nilakanta v. Imam Sahib 16 M. 361 : 3 M.L.J. 134 : 5 Ind. Dec. (N.S.) 958. Sidheswari Prasad Narain Singh v. Mayanand Gir 44 Ind. Cas. 697 : 40 A. 411 : 16 A.L.J. 236. Under the Code of 1908, it has been urged before us, a substantial alteration has been effected in the law. The purchase-money cannot now be got back unless the sale is set aside, further, a suit does not lie for recovery of the purchase-money, as it did under the Code of 1882. This view has been adopted in Nannu Lal v. Bhagwan Das 37 Ind. Cas. 9 : 39 A. 114 : 14 A.L.J. 1216; Paravathi Ammal v. Govindasami Pillai 3 Ind. Cas. 827 : 39 M. 803 : 2 L.W. 861 : 29 M.L.J. 467 : (1915) M.W.N. 797 Mohideen Ibrahim v. Mahamed Meera Levvai 17 Ind. Cas. 437 : 23 M.L.J. 487 : 12 M.L.T. 431 : (1912) M.W.N. 1130; Tirumalaisami Naidu v. Subramaniam Chettiar 45 Ind. Cas. 109 : 40 M. 1009; Subbu Reidi v. Ponnambala Reddi 49 Ind. Cas. 359 : (1918) M.W.N. 655; Bhagwan Das v. Allah Bakhsh 51 Ind. Cas. 595 : 52 P.R. 1919; Ram Saroop v. Dalpat Rai 58 Ind. Cas. 105 : 43 A. 60 : 18 A.L.J 905 ; 2 U.P.L.R. (A.) 318; Juranu Mahamai v. Jathi Mahamed 46 Ind. Cas. 783 : 22 C.W.N. 760; Man Mohan Lal v. Gopi Nath 46 Ind. Cas. 103 : 16 A.L.J. 511; Prasanna Kumar Bhattacharjee v. Ibrahim Mirza 41 Ind. Cas. 924. But it must be noted that the contrary view found favour with the Bombay High Court in Rustomji v. Vinayak Gangadhar 7 Ind. Cas. 955 : 35 B. 29 : 12 Bom. L.R. 723, where, without an examination of the changes introduced by the Code of 1908, it was ruled that the purchaser might now, as before, proceed by suit. It is not necessary, for our present purpose, to pronounce a final judgment upon the question of the exact extent of the alteration made in the preexisting law by the Code of 1908. But this much is indisputable that if the law has been changed, the alteration has been of a substantial character, namely, first, the right to recover the purchase-money by a suit instituted within six years after the accrual of the right to sue has been taken away; and, secondly, the purchaser is restricted to his remedy by an application under Rule 91, which must be male within thirty days from the date of the sale under Article 166 of the Schedule to the Indian Limitation Act, 1908, followed by an application under, Rule 93, which may be made within three years for the accrual of the right under Article 181. This leads us on to a consideration of the second point.

6. For the determination of the second question, we must recall that when the execution-sale took place in this case and was confirmed, the Code of 1882 was in force. The auction-purchaser, whose title accrued on the 11th December 1908, acquired on that date the right to obtain a refund of the purchase-money either by application or by suit within the prescribed period in one contingency, namely, if it should be discovered that the Judgment-debtor had no saleable interest at all in the property sold. This right cannot be deemed to have been extinguished by the promulgation of the Code of 1908, which came into operation on the first day of January 1909. This view is supported by the decision in Sidheswari Prasad Narain Singh v. Mayanand Gir 44 Ind. Cas. 697 : 40 A. 411 : 16 A.L.J. 236; Mohideen Ibrahim v. Mahamed Meera Levvai 17 Ind. Cas. 437 : 23 M.L.J. 487 : 12 M.L.T. 431 : (1912) M.W.N. 1130; Parbathi Ammal v. Govindasami Pillai 3 Ind. Cas. 827 : 39 M. 803 : 2 L.W. 861 : 29 M.L.J. 467 : (1915) M.W.N. 797; Tirumalaisami Naidu v. Subramaniam Chettiar 45 Ind. Cas. 109 : 40 M. 1009 and Alaji Iseek Sahib v. Vengu Chetty 6 Ind. Cas. 66 : (1920) M.W.N. 736 : 12 L.W. 639 where the provisions of the Code of 1882 were applied, though the suit had been instituted after the commencement of the Code of 1903; it may be observed parenthetically that, apparently through ai oversight, in Mahanmad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 : 36 A. 529 : 12 A.L.J. 908 the provisions of the Code of 1882 were as assained to be applicable, though the sue had been held on the 26th November 1920 in execution of a mortgage-decree made in 1892. Our conclusion is clearlyy supported of Section 6 Claues (c) and (e) of tie General Clauses Act, 1897, which provide that a repeal shall not affect any right of privilege acquired or accrued under the enactment repealed. The right of the purchaser dates from the confirmation of his purchase, and is primarily to the property, and secondarily, in the alternative and contingently, to re-payment; the latter branch becomes enforceable only in consequence of the discovery that the debtor had no saleable interest and that the title which the purchaser had imagined that he had acquired had no real existence. Such an alternative and contingent right is preserved by Section 6, Clause (c) of the General Clauses Act, 1897. Reference may in this connection be made to the lucid exposition contained in the judgment of the Judicial Committee in Colonial Sugar Refining Co. v. Irving (1905) A.C. 369 : 74 L.J.P.C. 77 : 92 L.T. 738 : 21 T.L.R. 513. In that case, the creation of the High Court of Australia took away the right of appeal from the Supreme Court of Queens land direct to His Majesty in Council. It was ruled that the Australian Commonwealth Judiciary Act 1903, whereby the High Court was established, could not be interpreted as retrospectively in operation, and that a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards, was not taken away. Lord Macnaghten observed as follows:

As regards the general principle applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only the petition is well-founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And, therefore, the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior Tribunal which belonged to tarn as of right is a very different thing from regulating procedure. In principle, their lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal. In either case there is an interference with existing rights contrary to the, well-known, general principle that Statutes are not to be held to act retrospectively unless clear intention to that effect is manifested.

7. This opinion is not opposed to the decision of the Judicial Committee in Abbott v. Minister of Lands (1895) A.C. 425 : 64 L.J.P.C. 167 : 11 R. 406 : 72 L.T. 402 where the right in controversy was neither definite nor enforceable from its origin. The principle of the decision in Colonial Sugar Refining Co. v. Irving (1905) A.C. 369 : 74 L.J.P.C. 77 : 92 L.T. 738 : 21 T.L.R. 513 has been repeatedly followed, Kalinga v. Narasima 9 Ind. Cas. 937 : 21 M.L.J. 631 : (1911) 1 M.W.N. 143 : 9 M.L.T. 259; Salimmamma v. Valli Hussanabha Beari 11 Ind. Cas. 653 : 21 M.L.J. 764 : 10 M.L.T. 78 : (1911) 2 M.W.N. 99; Madurai Pillai v. Muthu Chetty 22 Ind. Cas. 775 : 26 M.L.J. 227 : 15 M.L.T. 156 : (1914) M.W.N. 216 : 1 L.W. 172 : 38 M. 823 Rajah of Pittapur v. Gani Venkata Subba Row 30 Ind. Cas. 94 : 39 : M. 645 : 29 M.L.J. 1 : 18 M.L.T. 67 : (1915) M.W.N. 547 : 2 L.W. 661. We must further bear in mind the important circumstances that if, in the class of case now before us, the new Code were held applicable, the remedy of the purchaser, even by way pf application, might be found barred by limitation at the date of the commencement of the new Code as actually happened in Tirumalaisami Naidu v. Subramaniam Chettiar Ind. Cas. 109 : 40 M. 1009. In such an event, the repealing enactment cannot be given retrospective operation, so as to impose an impossible condition on pain of forfeiture of a vested right; see Manjuri Bibi v. Akkel Mahmud 19 Ind. Cas. 793 : 17 C.L.J. 316 : 17 C.W.N. 889; Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274; Gopeshwar Pal v. Jiban Chandra 24 Ind. Cas. 37 : 41 C. 1125 : 19 C.L.J. 549 : 18 C.W.N. 804; Rajah of Pittapur v. Gani Venkata Subba Row 30 Ind. Cas. 94 : 39 : M. 645 : 29 M.L.J. 1 : 18 M.L.T. 67 : (1915) M.W.N. 547 : 2 L.W. 661. We hold accordingly that the right of the plaintiff to maintain the present suit must be determined with reference, to the provisions of the Civil Procedure Code of 1882, when the sale took place, and his title as execution-purchaser accrued on confirmation.

8. The result is that this appeal is allowed and the decree of dismissal made by the District Judge set aside. A decree will be made in favour of the plaintiff against the sixth and seventh defendants for a sum of rupees one hundred and ninety with interest at six per cent per annum from the nth December 1908 to the date of realization. The plaintiff will have his costs in all the Courts from the sixth and seventh defendants. The other defendants will pay their own costs in all the Courts.


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