1. This is an appeal by the plaintiff against a decision of the learned Subordinate Judge of Berhampur, dated the 4th February 1913, affirming the decision of the Munsif of Lalbagh. The plaintiff brought the suit asking, first of all, for possession of a certain occupancy holding which he had bought at a sale in execution hold under a decree founded on a mortgage. In the alternative, he asked that, in the event of his not being able to recover possession of that land, he might be allowed to recover back the money that he had paid for the purchase of the land. The first defendant, who was a co-sharer-landlord, resisted the plaintiff's claim on the ground that he was a purchaser of the property under a rent-decree and that, therefore, the plaintiff could have no right as against a person claiming under a rent-decree. The learned Judge found that portion of the case against the plaintiff and there is no appeal here with reference to that, namely, that the first defendant is not liable to be ejected by the plaintiff as he claims to have purchased the property in execution of a rent-decree.
2. With regard to the other point, namely, as to whether or not the judgment-debtor at the time the plaintiff purchased the property had any saleable interest, and whether, if the judgment-debtor had no saleable interest, the plaintiff is entitled to recover back his purchase-money in this suit, 'the case has been dismissed by the learned Judge. The learned Judge in the primary Court found quite clearly that the judgment-debtor had no saleable interest at the date of the sale to the plaintiff. The lower Appellate Court seems to have adopted the same view, and in fact, it is impossible to read the rest of the judgment of the learned Subordinate Judge except on the footing 'that the judgment-debtor had no saleable interest. But the learned Judge in the lower Appellate Court declined to decree the suit on the ground that even if a separate suit could be maintained to recover the money which the plaintiff had given for the purchase of the property, he did not ask to set aside the sale and that, therefore, he could not recover the money. That Obviously cannot be right. The mere fact that the plaintiff asked for his money back but did not ask for the sale being set aside cannot bar his right. In fact, it is quite absurd that he should ask to set aside the sale when the Judge found that there was nothing to pass because the judgment-debtor had no interest in the property and, if the plaintiff had no interest, why he should go through the farce of asking the Court to set aside the sale
3. The only point in this case is whether a suit of this nature does lie. Apparently, all the High Courts in India seem to agree that a suit of this nature does lie. It is sufficient to refer to the decision of this Court in the case of Bam Kumar Shaha v. Ram Gour Shaha 2 Ind. Cas. 559 : 37 C. 67 : 13 C. W. N. 1080, 10 C. L. J. 558. There are cases also in the other High Courts in support of this view. But it has been objected that those decisions related to applications under the provisions of the old Code of Civil Procedure, and that, under the new Code, there has been a change. The authorities that have been cited show that that is not so. In the case of Rustomji v. Vinayak Gangadhar 7 Ind. Cas. 955 : 35 B. 29 : 12 Bom. L. R. 723 which was clearly a case under the new Code, the Court held expressly that a suit would lie under the provisions of the Code of Civil Procedure (V of 1908). A similar view has been taken in the case of Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 : 36 A. 529 : 12 A. L.J. 908. The cases seem to establish that a suit of this nature does lie and that the purchaser in execution is not limited to making an application under the terms of the Civil Procedure Code. If that is so, and the learned Vakil who appears for the contesting defendants has not challenged that it is not so. The case seems to be a perfectly simple one because all that the learned Vakil has attempted to urge is that it is not established that the judgment-debtor had no saleable interest, and, if he had no saleable interest, I gather from the learned gentleman's argument that he did not deny that the plaintiff would be entitled to recover back the money paid by him in those execution proceedings. That apparently is the only matter in this case. As I have already said, I think the learned Subordinate Judge, although he has not stated so in express terms, did mean to find, and his judgment is only consistent with that view that the judgment-debtor had no saleable interest in the property. Therefore in my opinion, the plaintiff is entitled to recover back the money paid by him to the decree-holder ,n the suit brought on the mortgage and m execution of which he purchased the property.
4. I think the decree of the learned Sub-ordinate Judge in the lower Appellate Court ought to be varied and in lieu of the decree dismissing the plaintiff's suit in toto a decree ought to be passed against the defendant No 3 namely, that the defend ant No. 3 should be ordered to pay to the plaintiff the sum of Rs. 50 together with interest at the rate of 6 per cent per annum from the 17th March 1911 until realisation. The defendant No 3 must pay to the plaintiff his costs not only in this Court but also in the lower Courts The appellant must pay to the other defendants, who have appeared and against whom the appeal has not been pressed their costs in this Court. We do not disturb the order of costs made in the lower Appellate Court in favour of these last mentioned defendants.
5. I agree.