SAHU DEPUTY SHANKAR Vs. MANGAL SEN

JUDGEMENT

(1.) This defendant's appeal arises out of an application for the refund of purchase money by Mangal Sen and Ram Prasad, the purchasers of immovable-property sold in execution of a mortgage decree. Briefly the relevent facts are as follows: One Mathura Prasad on 7 April 1919 mortgaged a shop at Chandausi, the mortgagee being Babu Gokul Chand, the father of Deputy Shankar, minor, opposite party 1 in the application. Gokul Chand who is now deceased, in respect of the mortgage, obtained a final decree for sale on 5 March 1924. The property was put up for sale under the decree and was sold to Mangal Sen and Ram Prasad; the applicant, on 4 September 1924. The proceeds of the sale were distributed eventually amongst opposite party 1 (the son of the mortgagee), opposite party 2 (the mortgagor Mathura Prasad) and opposite party 3, (Pandit Bhoj, Raj, a creditor of No. 2), by virtue of attachment in execution of a decree against him. Between the date of the final decree and the sale one Digambar Singh filed Suit No. 6 of 1924 in the Court of the 3 Sub-Judge of Morada-bad against the mortgagor and the mortgagee for a declaration that he was the true owner of the property in. question and for recovery of possession. After being successful in the first Court, his suit being decreed on 23 December 1924, unsuccessful on appeal,, his suit was decreed on "second appeal" by the High Court on 21 December 1927. He obtained possession of the-property on 19th September 1928. In the present application therefore the original purchasers Mangal Sen and" Ram Prasad seek the return of the purchase money which they paid from those amongst whom it was distributed. In this appeal we are concerned only with their claim for recovery so far as directed against opposite party No. 1, the son of Gokal Chand, the mortgagee, and decree-holder. As against him the applicants have been successful in both the Courts below.

(2.) The trial Court took the view that the final decree for sale was reversed. or nullified result of the decree ad-judging Digambar Singh the true owner of the property in question. The lower appellate Court took the view that the applicants must have a remedy, as considerations of equity make it right and just that they should have the purchase money refunded to them. In our opinion the applicants are not entitled to succeed upon either of these grounds. It is argued, for the appellant that under the present Civil P.C. (1908) an auction purchaser has been given a statutory right, under. Order 21, Rule 93, to recover his purchase money when the sale has been set aside on the ground that the- judgment-debtor had no saleable interest in the property sold (in accordance with the provisons of Order 21, Rules 91 and 92) and that he has no right to obtain a refund upon any other ground. In other words the auction purchaser has no right to recover his purchase money unless the sale has! been set aside under Order 21, Rule 92. We J. have come to the conclusion that this contention is correct. Under Section 315 of the Code of 1882 the auction-purchaser was given a right to receive back his purchase money not only when the sale was set aside, but also "when it is found that the judgment-debtor had no saleable interest in the property which was purported to be sold, and the purchaser is for that reason deprived of it."

(3.) Under the Code of 1882 therefore the auction purchaser would in the present case have been entitled to a refund. But in the Code of 1908 the law was substantially altered. In Order 21, Rule 93, the clause quoted has been deliberately omitted, and the auction purchaser is only entitled to a refund when the sale has been set aside under Rule 92. The deliberate omission of the clause quoted certainly suggests that the legislature did not intend that the auction- purchaser could claim a refund on the ground stated therein but could only claim a refund when the sale is set aside under Rule 92. This interpretation of the existing law has been adopted by most of the High Courts in India. In Nannu Lal V/s. Bhagwan Das [1917] 39 All 114 the effect of the statutory amendment was fully discussed and it was held that under the present Civil Procedure Code an auction- purchaser who has been deprived, by means of a suit against the judgment- debtor, of the property purchased by him cannot obtain a refund of the purchase money without getting the auction sale set aside. That ruling was followed by another Bench of this Court in Ram Sarup V/s. Dalpat Rai A.I.R. 1921 All 377. It was also followed by the Bombay High Court in Balwant Raghunath V/s. Bala A.I.R. 1922 Bom 205 and it may be noted that the property in that case had been sold in execution of a mortgage-decree, as in the present case. The allahabad rulings cited above were also followed by the Lahore High Court in Habibuddin V/s. Hatim Mirza A.I.R. 1925 Lah 467. The Madras High Court took the same view in Parvathi Ammal V/s. Govinda Sami Pillai [1916] 39 Mad 809. Their Lordships remarked: The right of action to obtain a refund consequent on the want of saleable interest in the judgment-debtor is not a right inhering in a purchaser, but is the creature of a statute, and the right thus conferred can only be exercised within the limitations prescribed. Consequently, with-out getting the sale set aside through Court the purchaser has no right of action.