THAKARLAL Vs. RAMA

JUDGEMENT

(1.) This purports to be a second appeal by one Thakarlal, an auction purchaser who purchased some immoveable property at an auction sale held on 30-4-48 for Rs. 8300/-. The sale took place in execution of the decree of Smt. Rama respondent No. 1 against Smt. Gulab respondent No. 4. Ram Chandra respondent No. 2 and Gulab Chand respondent No. 3 also held decrees against Smt. Gulab and the assets received as a result of the sale of the above property were rate-ably distributed amongst Smt. Rama, Ram Chander and Gulab Chand. Thakarlal auction purchaser was put in possession of the immoveable property shortly after the confirmation of the sale which took place on 10-7-48.

(2.) During the pendency of the proceedings in execution of the decrees of Smt. Rama, Ram Chander and Gulab Chand Ladulal instituted a suit for possession over the immoveable property which was attached in execution of Smt. Rama's decree in 1945. In this suit he claimed that he was the adopted son of Smt. Gulab's deceased husband Kesharlal. Smt. Rama, Ram Chander and Gulab Chand were impleaded as defendants in the suit. This suit was pending when the present auction sale took place. After it was confirmed Thakarlal auction purchaser was also impleaded as a party to the suit. The suit was decreed by the trial court on 6-1-49. The appeal preferred against the decree by the defendants was dismissed on 8-1-51. On 14-51 Ladulal was put in possession of the immoveable property, sold in execution of the decree against Smt. Gulab and Thakarlal was thereby dispossessed. He then filed the present application OR 23-4-51 to the executing Court under sections 47, 144 and 151 C. P. C. against the three decree-holders praying that they may be ordered to refund the purchase money to him. The sole ground on which the application was based was that it was discovered after the confirmation of the sale that the judgment-debtor had no saleable interest in the property. The executing Court dismissed it holding that there was no warranty of title at a Court sale and that after the sale was confirmed the auction purchaser had no right to get the refund of the purchase money. Against this order Thakarlal preferred an appeal to the District Judge who confirmed the decision of the executing Court.

(3.) The main question which arises for deter-mination in this case is whether the auction purchaser is entitled to recover back the purchase money from the decree-holder after the confirma-tion of sale if it is discovered that the judgment-debtor has no saleable interest in the property merely on the ground of such discovery.