BIPIN BEHARI GHOSH Vs. HARI CHARAN GHOSH

JUDGEMENT

(1.) In this appeal the only point which has to be decided is whether the purchaser at an auction sale can recover by suit from the decree-holder the purchase money when it has been found that the judgment-debtor has no interest in the property sold. The lower Appellate Court relying on the authority of the case of Juranu Mahamad v. Jathi Mahamed 46 Ind. Cas. 783 : 22 C.W.N. 760, held that the suit was not maintainable.

(2.) On behalf of the appellant, reliance is placed on a decision of this Court in an unreported case, Appeal from Appellate Decree No. 1197 of 1914 decided on the 2nd April 1917, Prasanna Kumar v. Ibrahim Mirza 41 Ind. Cas. 924, in which Fletcher and Smither, JJ., took an opposite view. We think we should follow the case on which the learned Subordinate Judge has relied. The decision of Chatterjee and Richardson, JJ., in that case is based on a decision of the Judicial Committee in the case of Dorah 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), which apparently was not considered in the other case. Moreover Fletcher and Smither, JJ., relied on the authority of a decision of the Allahabad High Court, Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 : 36 A. 529 : 12 A.L.J. 908. But in a later Allahabad case reported as Nannu Lal v. Bhagwan Das 37 Ind. Cas. 9 : 39 A. 114 at p. 118 : 14 A.L.J. 1216, Richards and Muhammad Rafique, JJ. refused to follow the earlier decision of that Court in the case of Muhammad Najib Ullah v. Jai Narain 26 Ind. Cas. 59 : 36 A. 529 : 12 A.L.J. 908, on the ground that the attention of the Court was not drawn to the change in the law effected by the Civil Procedure Code, 1908.

(3.) Taking this view, this appeal must be dismissed with costs against defendants Nos. 1 and 2, respondents who appear separately. They will be entitled to separate costs in this appeal.