BINDESHRI PRASAD TIWARI Vs. BADAL SINGH

JUDGEMENT

(1.) The main question for decision in this appeal is whether an auction-purchaser under a decree which has been, after confirmation of the sale, set aside as the result of a separate suit, can recover his purchase-money from the decree-holder. If the answer is in the affirmative, as we think it must be, there is a subsidiary question as to whether his remedy is by application under Section 47 or 144 of the Civil P. C. or by a separate suit.

(2.) The appellant Bindeshri Prasad is the auction-purchaser. The decree under which the sale was held was a, decree for sale on the basis of a mortgage executed in favour of the respondents by one Debi Saran Dhar. Debi Saran Dhaj formed a. joint family with his minor grandson Ram Bujharat. The respondents brought a suit for sale on the basis of their mortgage in the year 1917 impleading Debi Saran Dhar and Ram Bujharat. In this suit they obtained a preliminary decree for sale on the 1 of June, 1917. The decree was made final on the 22nd of January, 1918. The property was put up for sale on the 22nd of April, 1919, and purchased by the appellant for Rs. 660. The appellant was a stranger to the suit. The sale was confirmed under Order XXI, Rule 92, on the 24 of May, 1919.

(3.) Unfortunately for themselves the respondents made Debi Saran Dhar guardian ad litem of his grandson, thereby debarring the latter from pleading that the mortgage was not for legal necessity. The result was that Ram Bujharat, through another person as next friend, afterwards brought a suit against the respondents decree-holders and the auction-purchaser for a declaration that neither the mortgage, nor the sale decree, nor the, auction sale held thereunder were binding on him. The suit was decreed in his favour on the 14 of August, 1919, in respect of all the three declarations asked for. Armed with this decree. Ram Bujharat was successful in ousting the appellant from possession of the property. On an application under Section 144 of the Civil P. C. in the original mortgage suit possession was restored to him on the 24 of August, 1920. The auction-purchaser then made the present application for refund of the price which he had paid. It was filed as an application under Section 47 of the Code of Civil Procedure in. the original mortgage suit brought by the respondents, but the applicant subsequently asked that if the application was held not to come under Section 47, it should be treated as a separate suit under the provisions of Sub- section (2) of that section.