SATISH CHANDRA Vs. JWALA PRASAD

JUDGEMENT

(1.) The plaintiffs-applicants are the auction-purchasers. They purchased some property belonging to opposite party Jwala Prasad (hereinafter referred to as the 'judgment-debtor') in execution of a decree in favour of opposite party Girdhari Lal (hereinafter referred to as the "decree-holder") against the judgment-debtor. The sale was confirmed on 21st April 1942. Consequent on the confirmation of the sale the decree holder withdrew from the Court, the sale price deposited by the plaintiffs applicants. The order confirming the sale was set aside on appeal by the District Judge of Pilibhit and the order of the District Judge was upheld by this Court. The District Judge, while setting aside the sale, provided by his order that the auction purchasers shall get interest at the rate of 6 per cent. per annum, but omitted to pass any order for the refund of the purchase money. The auction-purchasers then instituted the suit giving rise to this application in revision against the decree-holder and the judgment-debtor both for the recovery of the purchase money. The Court below has dismissed the suit holding that the plaintiffs should have applied for repayment of the money under Order 21, Rule 93, Civil P. C., and that a separate suit for the refund of the sale price is not maintainable. The plaintiffs auction-purchasers challenge the correctness of this decision.

(2.) Learned counsel for the opposite parties has attempted to support the decision of the Court below by reference to Nannu Lal v. Shagwan Das, 39 ALL. 114 : (A. I. R. (4) 1917 ALL. 363), Sahu Deputy Shankar v. Mangal Sen, 54 ALL. 948 : (A. I. R. (20) 1933 ALL. 63), Mangal Sen v. Mathura Prasad, 57 ALL. 690 : (A. I. R. (22) 1985 ALL. 470), Amar Nath v. Chhotelal, I. L. R. (1938) ALL. 922 ; (A.I.R. (25) 1938 ALL. 593), Nagendra Nath v. Shambhu Nath, 3 pat. 947 : (A. I. R. (12) 1925 Pat. 106), Paliram v. Laheria Sarai Central Co-operative Bank Ltd., A.I.R. (25) 1988 Pat. 150 : (175 I. C. 347) and Mirza Jan v. Ghulam Raza, A. I. R. (28) 1941 Pesh. 41 : (194 I. C. 565).

(3.) None of these cases, however, except the Peshawar ease, (A. I. R. (28) 1911 pesh. 41 : 194 I. C. 565) case, touches the point upon which the decision of the present case depends for all these cases deal with the situation where, in spite of the existence of an order under Order 21, Rule 93, Civil P. C., confirming the auction sale, the auction-purchaser seeks to recover, by a regular suit, the purchase money from the decree-holder or somebody else who has taken it, on the ground that the judgment-debtor had no saleable interest in the property auctioned. All these cases unanimously lay down that such a suit is not maintainable. In order to appreciate the ratio of these decisions, it is necessary to bear in mind the well settled rule of law that the principle of caveat emptor applier to auction sales and that there is no warranty of title in such sales; so that before 1877 an auction purchaser, who made a bad bargain and was deprived of the property purchased by him by reason of the fact that the judgment-debtor had no saleable interest in it, found himself without any remedy.