Nagalinga Chettiar vs Guruswami Aiyar and Others

The applicant before us was the purchaser in Court auction of some Immovable properties sold in execution of a money decree. He purchased

in one lot two items of properties. In the sale proclamation it was mentioned that there was already a'' partition in the family of the judgment-

debtor. In execution of the sale certificate the auction-purchaser was put into possession of both the items of properties included in the lot.

Subsequently at the instance of the other defendants in the case, who were exonerated from liability under the decree one of the items was found

not to be the property of the judgment-debtor but to be the property of the other defendants. The Court accordingly directed that the auction-

purchaser should deliver back to defendants 3 and 4 that item of property which was found to be their property. The auction purchaser filed, under

Order 21, Rule 93, Civil Procedure Code, an application in the District Munsif''s Court praying that he may be allowed a proportionate refund of

the price paid by him. Both the Lower Courts have dismissed his application, and he has preferred the present petition.

The present is a case where the auction-purchaser purchased certain properties which were sold in one lot. It is found that the judgment debtor

had title to some of the properties included in the lot. It is also found that the judgment-debtor had no title in respect of some of the properties

included in the lot. In these circumstances, the question was argued whether the auction-purchaser is entitled either to have the sale set aside or to

have a refund of proportionate amount of the purchase-money paid by him into Court. The prayer of the auction-purchaser in the application that

he filed before the District Munsif was to have a proportionate refund of the price paid by him. We are of opinion that he is not entitled to such

relief. It is settled law that in Court sales there is no warranty of title in respect of the properties sold. It is only the right, title and interest of the

judgment-debtor in the properties included in the lot that pass to the auction-purchaser. Order 21, Rule 93 would not apply to cases where a

judgment-debtor has some interest in the property, however small the same may be. It would apply only to cases of entire absence of any interest

in the judgment-debtor in respect of the properties sold. That position, we take it, is clearly established. Having regard to the facts of the present

case, namely, that the auction-purchaser does not complain of want of title in respect of some of the properties included in the lot--in fact he is in

undisputed possession of some of the properties purchased by him--we think that the application for proportionate refund is unsustainable. In this

view we confirm the orders of the Lower Courts and dismiss the revision petition with costs