A M A MURUGAPPA CHETTIAR Vs. ARUNACHALA GOUNDAN

JUDGEMENT

(1.) Defendants 2 to 5 are the appellants in this second appeal. The first respondent instituted the suit to recover various sums of money from the different defendants. In execution of the decree in O.S. No. 1614 of 1933 of the District Munsiff's Court, Coimbatore, the plaintiff purchased a four-fifth share in two lots of property. That decree was obtained by defendants 1 to 5 against one Sinnia Goundan and his four sons. Sinnia Goundan was adjudicated an insolvent in I.P. No. 180 of 1933, Sub-Court, Coimbatore, prior to the institution of the suit; and the suit was instituted against him with the leave of the insolvency Court, and his four sons were also impleaded as parties to the suit. A decree for money was passed in that suit on the 21 March, 1934. Two lots of property were brought to sale on the 19 March, 1935, and the two lots were purchased in the auction sale held on that date by the plaintiff, lot I for a sum of Rs. 1,030 and lot II for Rs. 376, i.e., in these lots only the sons interests, namely four- fifth was sold and purchased. The sale was duly confirmed on 1 September, 1936, and the plaintiff obtained delivery of possession. The sale price deposited by the plaintiff in Court was distributed between the various decree-holders who claimed rateable distribution. Defendants I to 5 received Rs. 308, the sixth defendant Rs. 412 and the seventh defendant Rs. 310. On an application filed by the Official Receiver in the insolvency Court to set aside the sale or, in the alternative, to pay the sale proceeds into his hands on the ground that the property was the exclusive property of Sinnia Goundan, the first Court upheld the sale; but this decision was reversed on appeal by the District Court on the 19 September, 1938. It was held by that Court that the sale was a nullity and the sale was, therefore, set aside. After this order of the District Judge, the plaintiff was dispossessed from the property on the 1 February, 1942. The order of the District Judge setting aside the sale was confirmed only to lot I and the sale in respect of lot II was not disturbed. After the plaintiff was dispossessed from lot I, he applied in I. A. No. 32 of 1942 for refund of the purchase money which he paid in respect of lot I. That application was unsuccessful in the first Court and also in the appellate Court and it was pointed out by the appellate Judge that the only remedy of the plaintiff was to institute a suit to recover the money and that he was not entitled to recover the amount in the application. After these proceedings, the plaintiff instituted the present suit on the 20 November, 1943, against defendants 1 to 7 for the recovery of the amounts drawn by them by applications under Section 73 of the Civil Procedure Code, amounts which represented the sale proceeds of lot I.

(2.) Two objections were raised by defendants to the suit, one, that the suit was not maintainable and second, that the suit was barred by limitation. These contentions were overruled by both the Courts and the plaintiff's suit was decreed.. Hence this second appeal.

(3.) The same contentions have again been raised in the second appeal. In cases where a Court auction sale is found to be a nullity and no title passed under such sale to the auction purchaser, it was finally established by the Full Bench of this Court in Macha koundan v. Kottora Koundan that if the sale was held to be a nullity after it was confirmed, the auction purchaser will be entitled to sue to recover the purchase price paid by him. In view of this decision of the Full Bench, the contention that the suit is not maintainable is not tenable.