Rameshwar Lal Jhunjhunwala vs Ram Charan Prasad Sahu and Others

Rowland, J.—The petitioner was auction-purchaser of a property in execution of a money decree. A third party claimant having established title to the property, the auction-purchaser wanted to get back his money which had already been paid out to the decree-holders. The Subordinate Judge allowed the prayer of the petitioner and passed an order allowing him to recover a sum of Rs. 2425 which the decree-holders had withdrawn. From this decision an. appeal was presented to the District Judge who reversed it.

In revision it is contended first that no appeal lay and secondly that the Subordinate Judge''s order on the decree-holders to repay to the petitioner the sum of Rs. 2425 paid to them out of the sale proceeds was a correct order. As the statement of facts in the order of the Subordinate Judge is incomplete and not quite accurate, I shall restate them. The money decree was passed on 12th December 1929, by the Subordinate Judge at Monghyr, opposite parties Nos. 1 to 5 being the plaintiffs and opposite parties Nos. 6 to 10 the defendants, and this decree is still in force''; it has not been set aside as the Subordinate Judge thinks. The decree was transferred for execution to the Court of the Subordinate Judge at Bhagalpur who attached a certain house as being the property of the defendants judgment-debtors.

A claim under Order 21, Rule 58, Civil P.C. was presented by Mt. Parbati and was allowed on 12th January 1931. The decree-holders opposite parties Nos. 1 to 5 brought Title Suit No. 108 of 1931 under Order 21, Rule 63 claiming a declaration that the property was the property of the judgment-debtors and was liable to be attached and sold in execution of the decree. In this suit a compromise petition was filed and in pursuance of it a compromise decree was passed on 14th December 1932 declaring the house to belong to the judgment-debtors and giving them time to pay up the decree. The money not being paid, the decree-holders took out execution (No. 58 of. 1933) on which the house was put to sale and sold on 3rd July 1933 to the petitioner for Rs. 2755, of which sum the decree-holders withdrew Rs. 2425 on 15th May 1934, after the sale had been confirmed.

In the meantime the claimant, opposite party No. 11, who is the successor and heir of Mt. Parbati, brought Title Suit No. 84 of 1933 in the Munsif''s Court for a declaration that the compromise decree was fraudulently obtained. It was alleged that the decree-holders and judgment-debtors had obtained the thumb impression of the claimant on a blank paper pretending that it was intended for an adjournment petition only and had fraudulently filled it in as a compromise petition. The suit was decreed on 22nd December 1934, one the compromise decree vacated. The application of the auction-purchaser to get back the purchase money was presented on 4th January 1935. The decree-holders appealed from the decree in Title Suit No. 84 of 1933, but the decision was confirmed in appeal on 29th June 1935 and in second appeal on 5th December 1935. The order of the Subordinate Judge directing the decree-holders to bring into Court the sum of Rs. 2425 which they had drawn was passed on 26th September 1935.

The first point for consideration is whether this order of the Subordinate Judge was appealable. An appeal lies from an order for restitution passed u/s 144, Civil P.C. as from a decree, but it is said that this was not an order passed u/s 144 but passed in exercise of the inherent powers of the Court u/s 151. Section 144 is intended to be confined to cases in which the decree of a trial Court has been varied or reversed by some superior Court or by reason of some order passed by a superior Court.

In other cases the order for restitution comes u/s 151 of the Code and is not appealable. It was so held in Chintaman Singh v. Chuni Sahu A.I.R.1916. Pat 299 and this decision was approved by the Calcutta High Court in Ashutosh Nandi and Another Vs. Kundal Kamini Dasi and Others, .

It has been also held in Ram Ratan Prasad and Others Vs. Banarsi Lal and Others, that when an execution sale is set aside an order for restitution would not come u/s 144, because in such a case the decree is not varied or reversed but would come u/s 151 and would not be appealable.

In Sukhdeo Das v. Rito Singh A.I.R.1917. Pat. 495 a somewhat anomalous position had arisen. The decree-holder brought certain property to sale. The sale was set aside by the first Court at the instance of Ritu the auction-purchaser, on the ground that the judgment-debtor had no saleable interest in the property, but on appeal the order setting aside the sale was reversed and the sale was confirmed.

In the meantime Ritu Singh had withdrawn the purchase money from the Court and so when the sale was confirmed on appeal he was called on to bring into Court the purchase money. It was held that the first Court''s order must have been made u/s 151, Civil P.C. in exercise of the Court''s inherent powers and no appeal lay against it.

In the light of these decisions, I am of opinion that the first point taken in revision before me succeeds. The order of the Subordinate Judge was not appealable and the District Judge had no jurisdiction to set it aside. Apparently the remedy of the decree, holder, if aggrieved, was to present an application to this Court in revision.

It remains to consider the propriety of the Subordinate Judge''s order, for this Court obviously ought not to interfere in revision so as to restore an order which itself is without jurisdiction or founded on irregularity in the exercise of jurisdiction. Mr. Bose for the petitioner urges me to ''hold that the relief is one which the Court ought to give in pursuance of the well, recognized principle that.

one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors.

This observation was quoted by Lord Carson in Jai Berham v. Kedar Nath Marwari A.I.R.1922. P.C. 269 reproducing the dictum of Cairns L.C. in Rodger v. COmptoir d�Escompate de paris (1871) L.R. 3 P.C. 1 and the circumstances of the present case are prima facie such as to entitle the auction-purchaser as against the decree-holders to the sympathy and assistance of the Court so far as it can lawfully be given. For on the face of judicial pronouncements to which the decree-holders as well as the auction purchaser were parties, it would appear that the decree-holders first put up to sale a house which was not the property of the judgment-debtors; then a claim presented by the owner was allowed; thereafter the decree-holders in a suit brought to set aside that decision, fraudulently obtained a compromise decree in pursuance of which the house was put to sale and the petitioner purchased it on the ''faith of the compromise decree which has since been found to be tainted with fraud on the part of the decree-holders. If those are the facts, it hardly seems to accord with principles of natural justice that the decree-holders should retain the money which would never have come into their and but for their own fraud which has been exposed.

But the opposite party relied on the rule that in a court sale there is no warranty of title and contends that when property is sold, unless and until the sale is set aside, the purchaser has no cause to claim refund merely because the title of the judgment, debtor was defective. It is further said, that the sale can only be set aside in the manner provided by the Civil Procedure Code, that is to say, on an application by the auction, purchaser under Order 21, Rule 91. It is said that where a party is entitled to relief and a particular procedure is provided by the Code laying down the manner in which he is to get such relief, the Court has no jurisdiction to go outside that procedure and give relief purporting to act under its inherent power. The first contention, that before the purchaser can recover his money the sale must first be set aside, appears to be well founded. All that was sold in the auction sale was the right, title and interest of the judgment-debtors in the property. It might be worth more than the auction price, it might be worth less, it might be worth nothing; but whatever it might be, it passed by the sale to the auction purchaser who thereafter may be said to stand in the shoes of the judgment-debtor so far as title to the property is concerned; and until he quits or is removed from that position it can reasonably be argued that the occasion for refunding the money has not arisen. He must give back what was sold to him before he gets back what he paid for it.

It is argued for the petitioner that as a result of the decree in T.S. No. 84 of 1933 the sale should be considered in the eye of law to have been set aside. For this I am referred to the decision in Radha Kishun Lal Vs. Kashi Lal and Another, . This was a case in which after property had been sold and the sale confirmed a third party sued for a declaration of his title and for possession over the property which had been sold to the decree-holder. The suit was decreed and the decree, holder then claimed to execute the decree afresh against other property of the judgment-debtor as if the property in question had never been sold to him. He was allowed to do so. Mullick J. after referring to cases in which it has been held that the auction purchaser cannot bring a suit to recover from the decree-holder the auction-purchase money on the ground that the judgment-debtor had no saleable interest in the property and that the only remedy open to the auction purchaser is to apply under Order 21, Rule 91 to have the sale set aside, said that these authorities had no bearing on the question before him. He observed:

The effect of the decree, in favour of Firangi Lal, was to set aside the sale and no formal order to that effect was required. The decree-holder and the judgment-debtor were both parties to the suit and therefore they are bound by the order. The argument that under the present CPC no sale can be set aside, except by a resort to the procedure of Order 21 is, in my opinion, not well founded; nor is it necessary that the execution Court should formally cancel the order of satisfaction which was recorded after the sale of lot No. 1, before the decree-holder can proceed to recover the debt which has been revived in consequence of the decree declaring the sale of lot No. 1 to be invalid.

The decision just cited appears to have been given with reference to its own facts and the authority of the previous cases is not questioned. The position was more exhaustively examined in Jokhu Singh Vs. Chunnoo Lal, where the whole history of the legislation from Regulation. 7 of 1825 down to the Code of 1908 was reviewed. Kulwant Sahay J. with whom Jwala Prasad J. agreed said:

Under the present Code, an auction-purchaser may apply under Rule 91 to set aside a sale on the ground that the person whose property was sold had no saleable interest therein; and, if the sale is set aside upon such application, he may apply under Rule 93 for an order for repayment of his purchase money. If his application is disallowed, the Court has under Rule 92 to make an order confirming the sale, whereupon the sale becomes absolute, and when an order confirming the sale is made, then under Sub-rule (8) of Rule 92 no suit can be maintained to set aside that older. To my mind the present CPC makes a material alteration in the provisions of the Code of 1882, and it is, under the present Code, no longer open to an auction-purchaser to maintain a regular suit for a declaration that the judgment-debtor had no saleable interest in the property which amounts to a declaration that the order confirming the sale was bad and for setting aside the same and for a refund of the purchase money. Whereas u/s 815 of the Code of 1882 it was optional to enforce repayment of the purchase money upon setting aside of a sale by having recourse to the procedure provided for execution of a decree for money, and the auction-purchaser was not limited to that remedy which was not an exclusive remedy, but he could, if he so chose, bring a regular suit to enforce payment of the purchase money; under the present Code, no such option is left to the auction-purchaser and his only remedy is by way of an application under Order 21, Rule 91 of the Code.

For the petitioner I am referred to Nagendra Nath Ghosh Vs. Sambhu Nath Panday and Others, where restitution of the purchase money to the auction-purchaser was ordered to be made in exercise of the inherent powers of the Court u/s 151. But this like the decision in Radha Kishun Lal Vs. Kashi Lal and Another, was a casein which the auction-purchaser was the decree holder himself and in fact the learn, ed Judges found it necessary to distinguish cases in which the property purchased at'' an auction-sale is lost by the purchaser in consequence of a decree passed in a suit brought by a third party for a declaration that he and not the judgment-debtor was the owner of the same.

In such a case it had been held by the same Court in Amba Lal v. Ramgopal Madho Prasad A.I.R.1933. All. 28 that the only remedy of such a purchaser for the return of the purchase, money is that provided for by Order 21, Rule 91, and Order 21, Rule 93, Civil P.C. The Judges who decided 55 All 2219 did not question the correctness of the decision in 54 All 948 which proceeded on the principle that there was no warranty of title at court sales. It was observed that the right to refund only arises when the sale has been; set aside and without getting the sale set aside there is no independent right to obtain such a refund.

I think that the decisions in Radha Kishun Lal Vs. Kashi Lal and Another, and Nagendra Nath Ghosh Vs. Sambhu Nath Panday and Others, must be taken to have been given with reference to the special facts of those cases, and that without expressing any opinion as to the correctness of those decisions, I should follow the principle laid down in Jokhu Singh Vs. Chunnoo Lal, and Sahu Deputy Shankar Vs. Mangal Sen and Another With regard to what is there said however as to there being no right of suit for the same relief, I reserve my opinion as to whether those remarks apply to (cases where fraud is alleged and can be proved. There are observations in Balwant Raghunath v. Bala A.I.R.1922. Bom. 205 and Raja Risheecase Law Vs. Manik Molla and Others, to the effect that such suits may be maintainable. It is a well recognized principle that where the party j has another remedy and will not adopt or; negligently fails to pursue it, the Court will not, as a general rule, grant him relief under its inherent powers u/s 151.

The opposite party relies on this principle and contends that the remedy provided by the Code being an application under Order 21, Rule 91 and the period of 30 days from date of sale (Article 166, Limitation Act) having expired, the petitioner can have no relief. The petitioner''s answer is that it was due to the fraudulent device of the decree-holders that he was brought into his present position as he could not be aware of the absence of title in the judgment-debtor, until the result of the Title Suit No. 84 of 1933 and that justice demands that the petitioner be given relief on the principle that it would be iniquitous to let the decree-holders profit by their own fraud. If the petitioner can establish all that, he may be in a position to claim the benefit of Section 18, Limitation Act, and count time from the date of the decision of that title suit; and on that view on the date of the application for refund presented by him on 4th January 1935 it was competent to him to apply for setting aside the sale with refund of the money as a necessary consequence.

His application was not so framed, it is said, under the impression that the effect of the decree in Title Suit No. 84 of 1933 was automatically to set aside the sale, relying on Radha Kishun Lal Vs. Kashi Lal and Another, and though I cannot hold the present case to be governed by that principle, I do not consider that the petitioner can fairly be penalized for the mistake. It is a case for allowing such amendment to be made as will enable the matters in dispute between the parties to be properly heard and decided. Therefore although I am unable to support the order of the Subordinate Judge as it stands I think the petitioner ought to have an opportunity of getting any relief he may be entitled to. In the result, I set aside the Appellate Court''s order, and in lieu of restoring the order of the Subordinate Judge, direct that the petitioner be permitted to amend his application of 4th January 1935 adding a prayer for the setting aside of the sale, and adding facts relied on by him to avoid the bar of limitation and if he does so within a time to be fixed by the Subordinate Judge, the opposite party be given an opportunity to answer the amended application which the Subordinate Judge will then proceed to deal with in accordance with law. There was another point taken on behalf of the opposite party, that in any event the petitioner should not have been allowed any interest because he has been enjoying the property. It will be for the Subordinate Judge to deal with this. Parties are to bear their own costs here and be fore the District Judge. Costs of the first Court will be in the discretion of that Court.