Maharajadhiraj Kameshwar Singh Bahadur vs Bansidhar Marwari

Fazl Ali, J.—This is an appeal from an appellate decree affirming the decree passed by the Munsif of Darbhanga in favour of the plaintiff. It appears that on 6th April 1925 the defendant''s father obtained a decree for rent in respect of a holding situated within his zamindari against one Dwarka Chaudhury and certain other persons and the holding being put up for sale in execution of the decree was purchased by the plaintiff for a sum of Rs. 1,100 on 20th March 1928. The plaintiff deposited in due time the entire purchase money and a portion of it was withdrawn by the defendant and the balance by Dwarka Chaudhury and others. As a matter of fact, at the time when the plaintiff instituted the suit, neither Dwarka Chaudhury nor any of the other defendants in the rent suit was in possession of the holding. It is now established beyond doubt that though the holding had been previously mortgaged by the recorded tenant named Ramdhani Kant, the mortgage had been redeemed long before the institution of the rent suit by the latter and he was in possession thereof since 1919. Accordingly when the plaintiff proceeded to take possession of the holding through Court, Ramdhani Kant made an application under Order 21, Rule 100, Civil P.C., complaining that he had been wrongfully dispossessed by the plaintiff. This application succeeded and the possession of the property was restored to him on 5th August 1929. The plaintiff then instituted the present suit for recovery of Rs. 1,397 as damages. His case in the plaint was that the defendant''s servants who acted for him had committed a deliberate fraud on him and he was entitled to be compensated.

The case of the plaintiff has been accepted by both the Courts below and the facts which have been found by these Courts may be summarized as follows: (1) That Sri Kant having redeemed the mortgage from Dwarka Chaudhury was in possession of the holding in respect of which the rent suit has been brought by the defendants since 1919; (2) that though this fact was known to the servants of the defendants, they brought the suit not against Sri Kant but against Dwarka Chaudhury; (3) that the defendants'' servants had in bringing the suit acted in collusion with Dwarka Chaudhury and others and had thus defrauded the plaintiff. The Courts below have also in their judgment strongly commented upon the conduct of the defendant''s amlas in not producing the zamindari papers to substantiate the defence that at the time when the rent suit was instituted the name of Dwarka Chaudhury was still recorded in the landlords'' papers. They held therefore that the plaintiff was entitled to recover the entire purchase money together with the interest claimed by him by way of damages.

The first point which is raised by the learned advocate appearing on behalf of the defendant-appellant in this second appeal is that in view of the provisions to be found in Order 21, Rules 91 to 93, the plaintiff''s suit is not maintainable and in support of his contention he relies strongly upon the decision of this Court in Nagendra Nath Ghosh Vs. Sambhu Nath Panday and Others, . In that case it was held that a purchaser at a sale held in execution of a decree is not entitled to bring a regular suit for realization of the purchase money paid by him on the ground that the judgment-debtor has no saleable interest in the property and that where he has purchased a property in which the judgment-debtor has not a saleable interest, the proper procedure for him to adopt in order to recover the purchase money is to apply under Order 21, Rule 91, Civil P.C., to set aside the sale, and then if the sale is set aside he may apply under Rule 93 for an order for refund of the purchase money. If he does not apply under Rule 91 or his application is rejected, the sale must be confirmed, and Clause (3) of Rule 92 bars a suit to set aside the sale.

It appears that this is the view which prevails in all the High Courts except the High Court of Lahore and the Chief Court of Oudh and as at present advised I find no justification for holding a contrary view. It is, however, to be remembered that the present suit has not been brought either to set aside the sale or to recover the purchase money on the ground that the sale is not binding upon the plaintiff. The plaintiff''s action is one for damages for fraud, and as far as I can see, there is nothing in Order 21, Rules 91 to 93 to bar such an action. It appears to me that there is now a consensus of opinion that where an auction-purchaser at a Court sale has suffered loss through the fraud of the execution creditor or the breach of any duty which the execution creditor owes to the auction-purchaser, he is entitled to receive compensation for the loss which he has thereby sustained: see Raja Risheecase Law Vs. Manik Molla and Others, . Balwant Ranganath v. Bala Malu AIR 1922 Bom 205 , AIR 1931 116 (Nagpur) . Mehr Chand v. Milkhi Ram AIR 1932 Lah 401 and AIR 1930 148 (Oudh) . That this view is correct appears to me to be beyond question. Order 21, Rule 92, in so far as it bars a suit to set aside a sale, must be strictly construed and can have application only to those cases where the matters which are sought to be agitated by means of the suit could be agitated under Order 21, Rules 89 to 91. It is obvious that even if the plaintiff had become aware in time that the judgment-debtors in the rent suit had no saleable interest in the holding in question, he could not recover any damages for the fraud practised upon him by the decree-holder by instituting a proceeding under Order 21, Rule 93; and if he attempted to raise any question of fraud, be would have been met with the answer that such a question was beyond the scope of the enquiry. Besides, the remedy provided under Order 21, Rule 91, is available to an auction-purchaser only if he makes his application within thirty days of the sale. There may be cases, however (this case is one of that type) in which an auction-purchaser becomes aware of the judgment-debtor''s want of title in the property sold to him after the thirty days have expired and it is inconceivable that in such cases he should be left without a remedy. That being so, it has been held in some cases that where property to which the judgment-debtor has no saleable interest has been purchased in execution of a decree and the circumstances are such that in accordance with the equitable rules obtaining in that behalf it would be against reason and conscience that the person to whom the purchase price has been paid should retain the purchase money as against the auction-purchaser, the auction-purchaser is entitled to recover such money from the decree-holder as money had and received to his use. It is, however, unnecessary to deal with this aspect Of the matter because in my opinion it is clear that in the present case an action for damage can be maintained.

The next question which arises for consideration is whether the defendant should be called upon to refund the whole of the purchase money although he withdrew only a part of it, the balance being withdrawn by the defendant in the rent suit. It appears that the plaintiff for some reason or other did not implead Dwarka Chaudhury and others as defendants in the present suit, but that fact cannot in my opinion defeat this action because the defendant and Dwarka Chaudhury having on the finding of the Courts below acted in collusion with each other, their liability for damages was joint and several. The last point which arises in the case is whether a decree can be passed against the present defendant when the tortious act for which damages are claimed appears to have been committed during the lifetime of his father who is now dead. This point, however, was not raised in any of the Courts below or in the grounds of appeal and it cannot be allowed to be raised for the first time in this Court. For aught we know, if this point has been raised in any of the Courts below, it might have been possible for the plaintiff to prove facts which would make even the present defendant liable. I would, in these circumstances, dismiss the appeal with costs.

Agarwala, J.

I agree.