W. Comer Petheram, C.J.
1. This is a suit which has been brought by the plaintiff against the defendant to recover a sum of Rs. 2,750 and interest, and various other sums. The lower Court has dismissed the suit altogether, and so the matter comes before us now in appeal.
2. The facts of the case are that, some time ago, the present defendant brought a suit against the present plaintiff and two other persons, to recover a certain sum of money. It is immaterial to enquire what that suit was about. The Court of First Instance dismissed that suit with costs, which amounted to Rs. 300 and odd. The plaintiff in that suit appealed from that decision, and while the appeal was pending the defendants in that suit sued out execution of their decree for costs and in the execution proceedings the house, in which the then plaintiff was living, was sold and purchased by the present plaintiff, one of the defendants in that suit, for Rs. 2,750. Out of that amount the costs, on account of which the execution had been taken out, were satisied, and the balance, amounting to Rs. 2,429, was paid into Court, whereupon the plaintiff (the present defendant) applied to have that amount paid out to her, and that was accordingly done.
3. The state of things, therefore, was this; that the house had passed into the hands of the auction-purchaser, who happened to be also the execution-creditor, the costs for which execution had been issued was satisfied, and the balance of the purchase-money, the Rs. 2,429, had passed into the hands of the plaintiff in that suit, that is, of the person whose house it was that had been sold.
4. That being the state of things, the next thing that happened was, that the appeal, which had been preferred by the then plaintiff, came on for hearing. The Appellate Court was of opinion that the decree under which the house had been sold was wrong, and that there ought to have been a decree in favour of the then plaintiff. The Judge, therefore, set aside that decree and decreed the plaintiff's suit, and consequently that decree being gone, the sale was gone too, and had to be got rid of in some form or other.
5. It being borne in mind that the person who had purchased the house in execution was one of the defendants, and consequently a party to the cause, an application was made by the now defendant, who was the plaintiff in that suit, under the provisions of the Code of Civil Procedure, for restitution of her property. This application appears to have been resisted by the auction-purchaser, to this extent, that he stated that, if the house were restored to the plaintiff, the purchase-money should be refunded to him. It is true that this does no4 appear directly, but the owner of the house having, in that proceeding, objected to return the money, it may be inferred that the person who had paid the money had made some such objection as that.
6. However that may be, the Judge before whom the matter came, seems to have held that, as between the parties to the suit he was entitled to order the restitution of the house because the decree had been set aside, but that he was not in a position to say that, if that were so, the money should be paid back as well. But whether he came to that conclusion or not, at all events he refused to make the order that the money should be returned to the purchaser, although he ordered that the house should be re-conveyed to the plaintiff in that suit by her.
7. The state of things, therefore, now is, that the house having been re-conveyed by the purchaser to the then plaintiff, she remains in the position of having both the house and the money, which was paid as the consideration for it, and of which she applied to have her share paid out of Court to her, and ' which was so paid; and the question arises, whether, under such circumstances, the person who paid the money for the purchase of the house, can recover it from her, the owner of the house, as money received to his use, the consideration for it having failed.
8. I am of opinion that he can. I think that the money was money which was paid by him into Court, in consideration that this particular house should be conveyed to him; and I think that when the owner of the house applied to the Court and took the money out, she in a manner confirmed the sale; as between herself and the purchaser she made the transaction her own; and, therefore, I think, that when she put the law in motion to cancel the sale and take the house back again, she placed herself in the position of a person having in her possession money which belonged to another, the consideration for which had failed and so came within the ordinary rule of law that a person under these circumstances can be made to refund the money to the person fairly, entitled to it.
9. I think, therefore, that notwithstanding the provisions of the Code of Civil Procedure, which provide that all matters between parties to the execution proceedings shall be decided in the execution department, we are entitled to do justice and say that this money must be returned to the plaintiff, and a sufficient reason to give for that is that the plaintiff, in the character in which he appears in this suit, was not a party to the execution proceedings. His character, with reference to this transaction, was that he was an auction purchaser. It is a mere accident that he was an auction-purchaser in a suit in which he was one of the parties. In this suit he must be treated as a third person. He is, therefore, I think, entitled to maintain this suit without reference to the provisions of Section 583 taken along with Section 244 of the Code of Civil Procedure.
10. Under these circumstances I am of opinion that the decree of the Court below must be varied by giving the plaintiff a decree for the sum of Rs. 2,429, with interest thereon at the rate of six per cent, per annum from the 15th March 1885 to this date. The costs will be in proportion to the amounts decreed and disallowed respectively.
11. I agree to the decree which toy lord proposes to pass in this case.