C.V. Rajagopalachariar vs Rajagopalan and Others

Ramaswami, J.—Two points are taken in the civil miscellaneous second appeal, viz., that the lower court should have held that the plea of

the respondents was barred by the principle1 of constructive ''res judicata'' and secondly, that in any event the appellant before me should be

refunded the proportionate share of the purchase money (i. e., three-fourths).

In my opinion, both the points taken are bound to fail. Turning to the first point, what is the constructive ''res judicata'' pleaded? The argument

runs that since the petitioners in the lower court did not object at the settlement of the proclamation of sale to the sale of this property as property

liable to be sold in execution of the decree against the late Viswanatha Aiyar, or advance the claim that no sale could be valldly held as far as their

shares or interests (viz, three-fourths) were concerned, they are barred from agitating; the matter any further under the rule of construc-tive ''res

judicata''. In advancing this argument it was overlooked that the petitioners in the lower court had not any notice by reason of any of the processual

formalities laid down in the Civil Procedure Code, that this particular item of property constituting the subject matter of the dispute was being sold

in execution of the decree, as entirely liable in execution of the decree against the late Viswanatha Aiyar. No draft, as painted out by the learned

District Judge and Subordinate Judge, of the proposed terms was served upon the petitioners, nor did the notice contain any schedule describing

the properties to be sold. Therefore, it is idle to contend that if they had any such information at their disposal, they should have put forward the

objections which have been advanced now by them after being in possession of all the information. In other Words, what happened in this case

was, as has been set out in -- V.C.T.N. Chidambaram Chetti Vs. Kandasami Goundan (dead) and Another, , viz., that these respondents were

told that a certain date had been fixed for settling the terms and nothing more and therefore, it would be a very remarkable thing, if on receipt of

such notice, it were to follow that if they did not attend on that occasion, they must be taken to have attended and raised the question whether or

not the property was the property of the judgment debtor. So, by no stretch of imagination can it be said that these respondents are barred by the

principle of constructive ''res judicata''.

In regard to the second point, both on procedure and on the state of the law, the appellant is not entitled to a refund of three-fourths of the

purchase price. First of all, this is a petition by the judgment debtors u/s 47, Civil P. C. and if the appellant wants a refund of his purchase price, he

must file his own separate proceedings in the shape of a suit or other proceedings to agitate the relief he wants. He cannot tack himself on to the

judgment debtors in this petition and ask for a refund of the three-fourths of the purchase money which is outside the scope of this petition.

Secondly, I am afraid even if he is likely to agitate for it, he is not likely to get the remedy he wants because it has always been repeatedly pointed

out that in court sales there is no guarantee of title and that the buyer must beware. It follows therefore there may be ""lucky"" purchasers as well as

unlucky"" purchasers and to which latter category the petitioner appears to belong. In --''Narasinji Vannechand Firm, Gun-tur v. Suryadevara

Narasayya'', AIR 1945 Mad. 363 (B), it was held by a Bench of this court that the decision of the Full Bench in --""Macha Koundan v. Kottora

Koundan'', AIR 1936 Mad 50 (C), recognising the right of the auction purchaser to sue for recovery of the purchase money is confined to cases

where there has been a total failure of consideration, that is, where the judgment debtor''s interest in the property sold turned out to be nothing and

that it does not enable the auction purchaser to file a suit for recovery of the purchase money where there is only a partial failure of consideration,

as where the judgment-debtor is found to be entitled only to a portion of the property sold. So, this is precisely a case of this description because it

has turned out that the judgment debtor''s good title is only one-fourth and that in regard to the three-fourths, the judgment debtor had no title to

the property for the satisfaction of this debt.

In the result, this civil miscellaneous second appeal is bound to fail and is hereby dismissed with costs of the Government Pleader (4th

respondent).