V MACHA KOUNDAN Vs. VKKOTTORA KOUNDAN

JUDGEMENT

(1.) The facts out of which this Civil Miscellaneous Second Appeal arises are these. One T.K. Nambiar mortgaged a property to the appellant's father. The mortgagee sued for the mortgage money and obtained a decree for sale. The appellant as his legal representative executed the decree and in the sale that followed, the property was purchased by the respondent for Rs. 825. Meanwhile the junior members of T.K. Nambiar's tarwad sued for a declaration that the mortgage decree and sale were not binding on them and for possession. They obtained a decree and in execution got possession of the property. Thus the respondent was deprived of the possession of the property which he had purchased and he filed an application under Secs.47, 147 and 151, Civil Procedure Code for a refund of the purchase money. The District Munsif ordered the refund. On appeal, the District Judge deducted only the poundage fee and otherwise confirmed the District Munsif's order. The appellant, that is the legal representative of the decree-holder in the mortgage suit, has filed this appeal. He contends that the respondent is not entitled to a refund at all even by way of a regular suit; but his chief contention is that the respondent is not entitled to obtain a refund by way of an application in execution. Accordingly these two questions have been referred to the Full Bench in the order I have stated.

(2.) Taking the first question, namely, whether the respondent is entitled to a refund at all even by way of a suit, the question depends upon the rights of the parties as they flow out of the circumstances of the case and not upon whether a provision for such a suit is made in the Civil Procedure Code. The Civil Procedure Code is a Code of adjective law and cannot create rights of action though it may recognise them or take them away. Forgetting for a moment all technicalities and the Codes of Procedure, one would think on the facts that the auction- purchaser should have a right of action for money-had and received. The facts are that a decree-holder brings a certain property to sale bona fide believing it to belong to his judgment-debtor. The Court also under the same belief orders the sale of property. The auction-purchaser also under the same bona fide belief purchases it. Afterwards it turns out that the property does not belong to the judgment-debtor at all. Thus the auction-purchaser purchases nothing though he paid consideration for it under a mistake. The decree-holder gets a certain amount without really having brought any of the properties of the judgment-debtor to sale that is, under a similar mistake. Under the circumstances it is unconscionable that the decree-holder should retain the benefit of the money so obtained and the auction-purchaser should lose it and one would think that the auction purchaser would have a right of action for money had and received under the general law and not under any Code of Procedure.

(3.) Mr. Ramakrishna Aiyar, the learned Advocate for the appellant, refers to a decision in Sowdaminee Chowdrain V/s. Kishen Kishore Poddar (1869) 12 W.R. 8 (F.B.). This decision was passed under Act VIII of 1859 but the general right was discussed and it was negatived on the ground that there was no warranty by the Court or by the decree-holder.