TIRUMALAISAMI NAIDU Vs. SUBRAMANIAM CHETTIAR

JUDGEMENT

(1.) The question before us is in its most general form, whether the plaintiff, a Court-sale purchaser, whose suit for possession of the property put up for sale has failed, is entitled to recover the purchase money by suit or whether, as the lower Appellate Court held, he can do so only by petition under Order XXI, Rule 93, of the Civil Procedure Code.

(2.) Such a right of suit, in cases to which the present Code can be applied without reservation, was dismissed in Mohideen Ibrahim v. Mahamed Merra, Lerrai 17 Ind. Cas. 437 : 23 M.L.J. 487 : 12 M. L T 431 : (1912) M.W.N. 1130, one learned Judge being unwilling to negative it, though expressing no decided opinion, and the other negative it directly, because the purchaser had no longer a substantive right to recover, but only a statutory right to do so by application in special circumstances; and the latter opinion was confirmed obiter in Parvathi Ammal v. Govindasmi Pillai 30 Ind. Cas. 827 : 39 M. 803 : 2 L.W. 861 : 29 M.L.J. 467 : (1915) M.W.N. 797. The contrary view, however, has been taken in Rustomji Vinayak Gangadhar Bhat 7 Ind. Cas. 955 : 35 B. 20 at p. 31; l2 Bom. L.R. 723, the purchaser s right of suit being based on the existence of a contractual relation between him and the decree-holder and of a warranty by the latter of some saleable interest to be implied from the provisions of the Code. With all respect I cannot follow the reasoning. Dorab Ally Khan v. Khajah Moheeooddeen 5 I.A. 116 : 3 C. 806 : 2 C.L.R. 529 : 3 Suth. P.C.J. 519 : 3 Sar. P.C.J. 818 : 2 Ind. Jur. 426 : 1 Ind. Dec. (N.S.) 1097 (P.C.). and Sundara. Gopalan v. Venkatavarada Ayyangar 17 M. 228 : 3 M.L.J. 293 6 Ind. Dec.(N.S) 158. are referred to in the judgment, but they show that, in the absence of fraud (and none was referred to there or has been in the present case), the doctrine of warranty of title cannot be applied to Court sales or be the basis of proceedings except those which the procession law permits; and, if there is no warranty between the decree-holder and purchaser, there was no other basis for a contractual relation between them, since the former had no ownership of the property sold. In a Court sale nothing passes beyond the right, title and interest of the debtor, and, as there is no guarantee that it exists or is of any particular extent, the purchaser would have no cause of action apart from the Statute. The former Code accordingly conferred on him a special right, which the present Code has restricted and for the enforcement of which it provides special procedure. Taking this view I am against the plaintiff s general contention.

(3.) The plaintiff, however, has relied mainly on the special circumstances of his case, that he made his purchase and brought his suit for possession, imp leading the defendant when his right was regulated by Sections 313 and 315, of the Code then in force. In that suit, he asked for delivery of the suit land and profits. It was decided against him in 1909, after the provisions referred to had been superseded by Order XXI, Rule 93, under which, as I have held, his right is only to apply to the Court for refund. It is not disputed that he was originally entitled to sue. The argument for consideration is only that the change in the law did not deprive him of his right to do so.