ANNAMMA Vs. TRESIAMMA

JUDGEMENT

(1.) An interesting question has been raised in this Second Appeal and the case has been referred to a Full Bench in view of the importance of the question. Can a decree holder auction purchaser institute a suit against the judgment debtor for refund of the purchase money paid by him when, subsequent to the sale, he discovers that the judgment debtor had, at the time of the court sale, no saleable interest in the property That is the question for our consideration. The answer to this by the courts below was in the affirmative and the plaintiff has therefore obtained a decree. That is challenged by the appellant here who is the sole defendant in the suit.

(2.) The appellant before us is the first defendant in O. S.83 of 1955 of the Sub Court, Vaikom. That was a suit filed by one Ouseph Tressiamma against this appellant who was her sister, as the first defendant and one Isaac as the second defendant. That was for recovery of a sum of Rs. 1500/- with interest said to be due to Tressiamma under a will executed by her father which amount the appellant was directed to pay her. That is said to have been charged upon the property bequeathed to the appellant. The suit was contested by the first defendant, but Isaac, the second defendant, remained ex parte. A decree was obtained and the property was brought to sale. The decree holder herself purchased 1 acre 10 cents of the decree schedule property in auction and the sale was confirmed. But before she could take delivery one Mariakutty filed a suit. O.S. 384 of 1964, claiming that the property belonged to her, having been purchased by her from the appellant in 1125 M.E. and that the decree and court sale were not binding on her or her right to the property sold in court auction. This Mariakutty was the wife of Isaac, the second defendant, in O.S. 83 of 1955. Evidently the sale was taken by the wife, but it was the husband who was impleaded in the suit. Mariakutty succeeded in her suit and obtained a decree as a result of which the court sale in favour of the decree holder became ineffective. The decree holder sought to execute the decree once again, as if the decree was not satisfied. But the court did not allow such execution. Thereafter she. filed the present suit against the appellant who was the first defendant in the earlier suit O. S.83 of 1955 claiming that she was entitled to recover from the appellant the auction price together with interest at 6 percent from the date of sale. The cause of action alleged is that there has bean total failure of consideration in the matter of the court sale and this was occasioned by the fraud practised by the defendant and her collusion in the earlier suit with Isaac, the second defendant, to keep the plaintiff in ignorance of the fact of conveyance.

(3.) The suit was resisted by the defendant on the plea that the plaintiff had no cause of action. The plea of fraud was denied. The claim against the defendant, it was said, was satisfied by the decree in O. S.83 of 1955 and thereafter it was not open to the plaintiff to claim to recover any amount. It was also pleaded that the default to. implead the real owner of the property was that of the plaintiff and therefore plaintiff alone should suffer the consequences. The maintainability of the suit was questioned. The courts below found that the plaintiff was entitled to claim recovery of the purchase money since the sale had become ineffective. In taking this view the courts below have evidently purported to follow a decision of this Court in Mathai v. O. Oommen ( 1962 KLT 12 ) which had referred to the Full Bench decision of the Travancore High Court in Kasim v. Aliarkunju (1947 T.L.R. 132) with approval. But these decisions related to the question of the right of a stranger auction - purchaser to recover the sale amount where the judgment debtor whose property was sold in court auction was found to have no saleable interest in the property sold. Here the suit was by the decree holder auction purchaser who had brought the property to sale and purchased it in auction. The appeal is by the defendant challenging the decree passed against her.