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Juranu Mahamad Vs. Jathi Mahamed - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.783
AppellantJuranu Mahamad
RespondentJathi Mahamed
Cases ReferredNannu Lal v. Bhagwan Das
Excerpt:
execution - sale--purchaser deprived of property by person claiming under paramount title--suit to recover purchase-money, maintainability of--civil procedure code (act v of 1908), order xxi, rules 91, 92 and 93. - .....the right to bring a suit, therefore, must depend upon the further question whether the title to property sold in execution of a decree is guaranteed either by the court or by the decree-holder. under what we may term the general law apart from statute there is no warranty of title at a court sale. see dorab ally khan v. abdool azeez 5 i.a. 116 : 3 c. 806 : 2 c.l.r. 529 : 3 suth. p.c.j. 519 : 3 sar. p.c.j. 818 : 2 ind. jur. 426 : 1 ind. dec. (n.s.) 1097 (p.c.). in the judgment of the privy council in that case the following observation occurs:now it is, of course, perfectly clear that when the property has been so sold under a regular execution, and the purchaser is afterwards evicted under a title paramount to that of the judgment-debtor, he has no remedy against either the.....
Judgment:

1. The facts are clearly stated by the learned Munsif. In execution of a decree obtained by the defendant as mortgagee of an occupancy holding, the holding was put up to sale and purchased by the plaintiff in February 1910 for Rs. 335. The plaintiff obtained possession in May 1910, but was subsequently sued in ejectment by the landlords in whose favour a decree was made on the 28th August 1912. The plaintiff then brought the present suit to recover his purchase-money with interest. The suit was dismissed by the Munsif who held that such a suit was not maintainable. An appeal by the plaintiff was successful and the appeal before us has been preferred by the defendant from the judgment and decree of the Subordinate Judge dated the 6th March 1915.

2. The question is whether an auction-purchaser, who is deprived of the property sold to him by reason of the fact that the judgment-debtor had no saleable interest therein or who is evicted under a title paramount to that of the judgment-debtor, is entitled to bring a suit to recover his purchase-money from the decree-holder.

3. It appears to have been held that Section 315 of the Civil Procedure Code of 1882 conferred a statutory right upon the purchaser which was sufficient to support a suit of this nature [Munna Singh v. Gajadhar Singh 5 A. 577; A.W.N. (1883) 130 : 3 Ind. Dec. (N.S.) 491 (F.B.), Pachayappan v. Narayana 11 M. 269 : 12 Ind. Jur. 92 & 38 : 4 Ind. Dec. (N. s.) 187, Gurshidawa v. Gangaya 22 B. 783 : 11 Ind. Dec. (N. S) 1106 and Ram Kumar Shaha v. Ram Gour Shaha 2 Ind. Cas. 559 : 37 C. 67 : 13 C.W.N. 1080 : 10 C.L.J. 558].

4. As pointed out, however, in Nannu Lal v. Bhagwan Das 37 Ind. Cas. 9 : 39 A. 114 at p. 118 : 14 A.L.J. 1216 the corresponding provision in the present Code, Order XXI, Rule 93, is framed in very different terms. Under that rule the purchaser's right to a refund only arises when the sale has been set aside under the preceding Rule 92 and the right conferred is 'to an order for repayment of his purchase money, with or without interest as the Court may direct, against any person to whom it has been paid.' That implies that the order will be made as incidental to the proceedings by which the sale is set aside. Rule 91 only confers a right to make an application to the Court, that is, to the Court of execution. The Code confers no right to bring a suit either directly or constructively.

5. The right to bring a suit, therefore, must depend upon the further question whether the title to property sold in execution of a decree is guaranteed either by the Court or by the decree-holder. Under what we may term the general law apart from Statute there is no warranty of title at a Court sale. See Dorab Ally Khan v. Abdool Azeez 5 I.A. 116 : 3 C. 806 : 2 C.L.R. 529 : 3 Suth. P.C.J. 519 : 3 Sar. P.C.J. 818 : 2 Ind. Jur. 426 : 1 Ind. Dec. (N.S.) 1097 (P.C.). In the judgment of the Privy Council in that case the following observation occurs:

Now it is, of course, perfectly clear that when the property has been so sold under a regular execution, and the purchaser is afterwards evicted under a title paramount to that of the judgment-debtor, he has no remedy against either the Sheriff or the judgment-creditor.

6. If that be the law--apart from any such statutory right as that which may have been conferred by Section 315 of the Code of 1882--then the present suit is incompetent and the learned Subordinate Judge was Wrong in reversing the Munsif's decree.

7. This conclusion is in accordance with the view of the Allahabad High Court in the case already cited. It is also supported by a dictum of the Madras High Court in a recent case [ Parvathi Ammal v. Govindasami Pillai 30 Ind. Cas. 827 : 39 M. 808 at p. 805 : 2 L.W. 861 : 29 M.L.J. 467 : (1915) M.W.N. 797]. It is true, as the respondent's learned Pleader reminded us, that a different view has been taken in Bombay [Rustomji v. Vinayak Gangadhar 7 Ind. Cas. 955 : 35 B. 29 : 12 Bom. L.R. 723]. But with great respect we are unable to appreciate the grounds on which that decision rests. The position may be summed up in the words of Muthusami Ayyar, J., in Sundara Gopalan v. Venkatavarada Ayyangar 17 M. 228 : 3 M.L.J. 293 : 6 Ind. Dec. (N.S.) 158: 'The decision of the Privy Council seems to me to be an authority for the proposition that the implied warranty of title in respect of sales by private contract cannot be extended to Court sales, except as far as such extension is justified by processual law in India.'

8. The precise point which arises here did not arise in the case before Muthusami Ayyar, J., and was not dealt with. It seems possible, however, that if the question had arisen, that learned Judge might have himself been disposed to take the narrower view of the rights of the auction-purchaser even under the Code of 1882. However that may be, the present Code, as already stated, is differently expressed and does not support the remedy by suit which the respondent claims.

9. It has to be remembered that what is sold at a Court sale is the property, not of the decree-holder but of the judgment-debtor. It may often happen that the bidders at the sale know more about the property than the decree-holder and in any case, as the Allahabad High Court points out Nannu Lal v. Bhagwan Das 37 Ind. Cas. 9 : 39 A. 114 at p. 118 : 14 A.L.J. 1216, 'to allow the purchaser to get back the price without having the sale set aside, perhaps long after the sale, would obviously open the door to much fraud and would place the decree-holder at a very great disadvantage.'

10. We allow the appeal and restore the decree of the Munsif with costs throughout.


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