BANKA BEHARY DAS Vs. GURDAS DHAR

JUDGEMENT

(1.) The plaintiff, who was the auction-purchaser at a sale in execution of a decree for rent, sued both the decree-holder and the judgment-debtor for refund of the purchase money and also for compensation on certain allegations made in the plaint. The suit was decreed in the primary Court against both the defendants. On appeal by the decree-holder defendant, the learned Judge has dismissed the suit holding that it was not maintainable. The plaintiff appeals to this Court and two questions have been raised on his behalf : (1) - Whether a suit for refund of purchase money is maintainable by the auction-purchaser on the ground that the judgment-debtor had no saleable interest in the land and (2) whether the suit is maintainable on the ground of fraud of the defendants. With regard to the first question, the learned Vakil for the appellant has placed before us all the cases decided by the different High Courts with reference to sales held after the Civil P. C. of 1908 came into operation. He admits that the general view is that such suits are not maintainable. It is only necessary to refer to the latest cases which are Ram Sarup V/s. Dalpat Rai A.I.R. 1921 All. 377, Balvant Ragunath V/s. Bala A.I.R. 1922 Bom. 205, Tirumalaisami Naidu V/s. Subramanian Chathar [1917] 40 Mad. 1009, Juranu Mohammed V/s. Jathi Mohammed [1918] 22 C.W.N. 760. He, however, relies on two cases in support of his contention that such a suit is maintainable, namely, the cases of Rustamji Ardeshir Ivani Vs. Vinayak Gangadhar Bhat [1911] 35 bom. 29 and Prosanna Kumar Bhattacharjee V/s. Ibrahim Mirza [1922] 36 C.L.J. 205. The case reported in 35 Bom. 29 : [1911] 35 Bom. 29 was under the Civil Procedure Code of 1882 as pointed out by the learned Chief Justice in Balvant Ragunath's case A.I.R. 1922 Bom. 205. The only case then in which a discordant note was struck is that reported in 36 C.L.J. 205. That case, however, was based on the decision reported as Rustamji V/s. Vinayak [1911] 35 Bom. 29 which is no authority on the question when the sale was held under the Code of 1908. We must, therefore, follow the later case in our Court reported in 22 C.W. N. 760 which is in agreement with the decision of all the other High Courts and hold that such a suit is not maintainable.

(2.) The learned Vakil for the appellant further contends that there is a difference between the present case and the others, as, in the present case the sale was a sale in execution of a rent decree and there is a warranty of title in the case of such a sale. The authority cited in support of this proposition is the decision in Abdul Bawan V/s. Nekhar Mandal [1912] 17 C.L.J. 652. That case, however, does not lay down any such rule, as it decides merely a question of estoppel by representation. That there is no such distinction as regards warranty will be apparent from the fact that the proclamation of sale which haw to be published is in the same terms in both classes of cases. The difference in the rights acquired by purchasers in execution of decrees does not affect the question as regards warranty of title.

(3.) Before parting with this question I must observe that the plaintiff does not state that the judgment-debtor had no saleable interest, the allegation being to the effect that the plaintiff purchased only the right, title and interest of the judgment-debtor and not the holding free from all encumbrances as in a rent sale. On that allegation, the question discussed does not arisg and the plaintiff's suit is not maintainable on any ground whatsoever.