ALAPATI SUBBARAYUDU Vs. JALLIPALLI LAKSHMAYYA

JUDGEMENT

(1.) In execution of the decree in O. S. No. 154 of 1931 against one Ramabrahmam, the appellant, who was the decree-holder, brought certain items of properties to sale, and in court auction, they were purchased by the respondent. The sale certificate shows that two items were, sold in two separate lots, the first lot having been knocked down for Rs. 625 and the second lot for Rs. 1340, the entire purchase money being Rs. 1960, Subsequently, one Vecrabrahmacharlu, filed O. S. No. 156 of 1935 on the ground that this Ramabrahmam had no title to some of the properties sold tO that suit, the present respondent, who was the purchaser, was a party. The decision therein was that in the first lot, the "judgment-debtor, Ramabrahmam, had no title and, therefore, the properties were delivered over from the possession of the respondent to the plaintiff therein. Thereafter, the present respondent-plaintiff filed the suit out of which this second appeal srises, for the refund of the purchase money of lot No. 1 with interest thereon from the date when he paid the money, as well as the costs incurred by him in defending O. S. No. 156 of 1935.

(2.) The learned District Munsif found that the plaintiff-respondent was entitled to refund of the purchase money alone and that he was not entitled to recover the costs or the interest from the earlier date, but only from the date when O. S. No. 156 of 1935 was decreed by the Court of appeal. Against that decision, there was an appeal by the defendant, who was the decree-holder in O. S. No. 154 of 1931. A memorandum of cross-objections was filed by the plaintiff, who was the purchaser in court auction. The lower appellate Court dismissed the appeal and allowed the memorandum of objections, and thereby gave the purchaser in court auction, not only the purchase money deposited by him, but also the costs which he had incurred in defending O. S. No. 156 of 1935, as well as interest on the purchase money from the date of the deposit.

(3.) The decree-holder, at whose instance the items of properties were sold, comes to this Court to second appeal, and it is contended on his behalf by Mr. V. Rangachari that in view of the provisions of Order 21, Rule 91 to 93, C. P. C., it is not open, under the general law, for a purchaser in court auction, whose property had been taken away from him by a person with superior title, to file a fresh suit for recovery of the purchase money. The learned counsel urges that the only remedy open to such a defeated purchaser is to apply under Order 21, Rule 91, C. P. C. for a refund of the purchase money within the period allowed by law under Article 166, Limitation Act, and if no such application has been filed in time, a suit under the general law is not sustainable. Unfortunately for the learned counsel, the point at issue has been set at rest by a Pull Bench of this Court in --'Macha Koundan v. Kottara Koundan', AIR 1936 Mad 50 (FB) (A) where it is held that where an auction purchaser in execution of a mortgage decree loses possession of the property as a result of a suit filed by a third party, then, he has a light to recover back the purchase money from the decree-holder by a separate suit and not by proceedings in execution. The principles decided in that case apply to the facts of the present case.