MT IDIA Vs. LACHMI NARAIN

JUDGEMENT

(1.) THIS is an execution second appeal by Mt. Idia, an auction-purchaser, who claimed a refund of the money which she had paid at an auction sale from the decree-holder. The auction sale took place in October 1926 and it was confirmed in November 1926 and the appellants took possession in February 1927. Two years later in 1929 certain strangers, Basudeo Sahai and others, brought a suit for possession claiming a share in the house sold at the auction sale and obtained a decree for possession on 18 May 1929. The appellant claims a refund of the purchase money on this ground. The lower appellate Court has held that there is no rule of law under which such a claim can be brought. Learned Counsel for the appellant claimed that his client was entitled in equity to a refund; but the only section to which he could refer was the general Section 151, Civil P.C. Recourse should not be had to a general section of that nature for a remedy which does not come under some positive rule of law. "Where a purchaser by a private sale has a defect in his title he may sue either under a covenant of title in his sale deed or under the general provision in Section 55, T.P. Act, unless that general provision is barred by a special contract in the sale deed. But where an auction-purchaser purchases immoveable property at an auction sale by a Court there is no guarantee by the Court corresponding to the guarantee under Section 55, T.P. Act. The auction-purchaser must be aware of the fact that he is purchasing property subject to the risk that it may be claimed subsequently by a third party.

(2.) IT is only the right and title of the judgment-debtor which passes to the auction-purchaser and the auction-purchaser takes that right and title subject to any claims which may subsequently be made by third parties. Before the lower Court some reference was made to the Full Bench ruling in Bindeshari Pershad Tewari V/s. Badal Singh A.I.R. 1923 All. 394, but that was a case where the auction sale had been set aside, and of course where the auction sale is set aside the auction-purchaser is entitled to a refund. I find no merits in this appeal which is dismissed with costs.