RAM KUMAR SHAHA Vs. RAM GOUR SHAHA

JUDGEMENT

(1.) The defendant, appellant in this suit, instituted a rent suit against one Buzlar Sobhan Chowdhury. He obtained a decree and in execution put up a certain jote to sale as being the property of Buzlar Sobhan. This property was purchased by the plaintiff. Subsequently a certain Mrs. Dillany brought a suit, in which she made the present plaintiff and the present defendant parties, for a declaration that this jote belonged, not to Buzlar Sobhan Chowdhury, but to herself, and in this suit she obtained a decree. The plaintiff then brought this suit for recovery of the money which he had paid for his purchase. The suit has been decreed and the defendant appeals.

(2.) The first point taken on behalf of the appellant is that the suit itself is not maintainable, and reliance is placed first on the decision in Dorab Ally Khan V/s. Executors of Khajah Moheeooddeen (1878) I.L.R. 3 Calc. 806. That decision, however, was passed under the old Code of 1859 and proceeded principally on the doctrine of caveat emptor. It is impossible, however, to hold that doctrine has the same effect under the Code of 1882 that it had under the former Code. Section 313 of the present Code enacts that a purchaser may apply to have the sale set aside on the ground that the person whoso property purported to be sold had no saleable interest therein. No such provision is found in the former Code and the addition of this section clearly goes far to weaken the effect of the doctrine of caveat emptor in so far as it might be applicable to execution sales.

(3.) Reliance has also been placed on the decision in Sowdaminee Chowdhrain V/s. Kishen Kishore Poddar (1869) 12 W.R. 8 F.B. In that case it was held that a purchaser can recover his purchase-money only when the sale is set aside summarily for irregularity or the like under the provisions of the Act, and not when a third party succeeds in establishing his title to the property sold. But this decision also was passed under Regulation VII of 1825, and in the Code of 1882 the law has been considerably changed. Section 315 lays down that when a sale of immoveable property is set aside tinder Secs.310A, 312 or 313, or when it is found that the judgment-debtor had no saleable interest, then the purchaser is entitled to relief. The use of the disjunctive shows that it is only when the sale is set aside under Section 313 that the purchaser is entitled to relief; and that being so, it is clear that the decision cited has not the same application under the Code of 1882 that it had under the Code of 1859.