MAKAR ALI Vs. SARFADDIN

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possession of immoveable property purchased by him at an execution-sale, or, in the alternative, for recovery of the money paid by him as purchaser at such sale. The Trial Court dismissed the suit, and that decree has been affirmed by the District Judge on appeal. The facts material for the determination of the questions of law raised before us are no longer in controversy and may be briefly recited. On the 18 September 1904 the fifth defendant mortgaged the disputed property to the sixth and seventh defendants to secure a loan of Rs. 100 which was made repayable on the 12 February 1905. On the 14 June 1907 the mortgagees sued the mortgagor to enforce the security. The claim was contested by the mortgagor in his written statement, but, ultimately, a decree was made by consent on the 13 November, 1907. The decree was executed in due course, and at the sale which followed, the plaintiff, a stranger to the suit, became the purchaser for a sum of Rs. 190. The sale was confirmed and the sale certificate was granted on the n December, 1908. Symbolical possession was thereafter delivered to the purchaser on the 28 March 1909. She was unable, however, to obtain actual possession and was thus constrained to commence the present litigation on the i6h April 1917. The claim for possession was controverted by the first defendant, who urged that neither the fifth defendant nor his mortgagees nor the plaintiff ever had any title to the disputed land, and in this defence he was supported by some of the other defendants. The Courts below have concurrently found that the fifth defendant had no title to the land at any time, and that, consequently, the mortgage as also the execution-sale based thereon had passed no title to the plaintiff. In this view, the claim for possession put forward by the plaintiff has been negatived. The alternative claim for recovery of the purchase-money from the sixth and seventh defendants has been dismissed on the ground that the only remedy of the plaintiff is by an application under Order XXI, Rule 93, read with Rule 91, of the Civil Procedure Code, 1903, and that a regular suit is not maintainable for the purpose. The plaintiff has now appealed to this Court and has argued that the decision of the District Judge is erroneous on two grounds, namely, first that under the Code of 1908, as under the Code of 1882, a regular suit may be maintained by an execution-purchaser to recover the purchase-money on the ground that the judgment-debtor had no saleable interest in the property sold, and, secondly, that, if under the Code of 1908 the law be deemed to be different from what it was under the Code of 1882, the provisions of the latter Code should be applied to the present case, as they were in force on the date when his purchase became absolute under Section 312 and Section 314 of that Code.

(2.) For the determination of the first question, a comparasion between the relevant provisions of the Codes of 1882 and 1908 is essential. Secs.313 and 315 of the Code of 1882 were as follows: 313. The purchaser at any such sale may apply to the Court to set aside the sale, on the ground that the person whose property purported to be sold had no saleable interest therein, and the Court may make such order as it thinks fit: Provided that no order to set aside a sale shall be made unless the judgment- debtor and the decree-holder have had opportunity of being heard against such order. 315. When a sale of immoveable property is set aside under Section 310-A, 312 or 313, or when it is found that the judgment-debtor had no saleable interest in the property which purported to be sold and the purchaser is, for that reason, deprived of it, the purchaser shall be entitled to receive back his purchase-money (with or without interest as the Court may direct) from any person to whom the purchase- money has been paid. The re-payment of the said purchase-money and of the interest (if any) allowed by the Court, may be enforced against such person under the rules provided by this Code for the execution of a decree for money.

(3.) Rules 91 and 93 of Order XXI of the Code of 1908 are as follows: 91. The purchaser at any such sale in execution, of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold. 93. Where a sale of immoveable property is set aside under Rule 92, the purchaser shall be entitled to an order for re-payment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.