Bavdekar, J.:—

The respondent Co-operative Credit Society had obtained an award in 1929 for Rs. 576-13-3 against one Basawwa under the Co-operative Societies Act. The property in suit was sola in execution of that award on February 15, 1934. It appears that prior to this sale the property in suit had already been attached by another creditor and the sale price was distributed between the respondent Co-operative Credit Society and the other creditor, but there has been a compromise subsequently between the latter and the auction purchaser of the property and we will not be concerned with him, therefore, in the present appeal. The respondent Co-operative Credit Society refused to compromise the matter and consequently the suit has come to this Court. The reason why the auction purchaser was required to file a suit is that on February 15, 1934, one-person claiming to be the adopted son of Basawwa adopted on January 29, 1930, sued the auction purchaser after he had been put into possession of the property and dispossessed him in execution of a decree obtained in that suit. The auction purchaser thereupon tiled this suit against the original judgment-creditor, the respondent Co-operative Credit Society, for refund of the purchase money on the ground that even though he purchased at the execution sale the right, title and interest of the judgment-debtor, it had subsequently turned out that Basawwa had no saleable interest in the property brought to sale. The auction purchaser who is the appellant in the present appeal has failed so far and he has consequently filed this second appeal to this Court, contending that inasmuch as it has been found that the adopted son was entitled to the property and Basawwa had no saleable interest in the property, his suit should have been decreed. This appeal has now been referred to us because of two decisions of this Court (1) in Rustomji Ardeshir Irani v. Vinayak Gangadhar Bhat and (2) in Balvant Raghunath v. Bala. The former was a case under the old Code of 1882 and it was held in that case that a Court purchaser who had discovered that the judgment-debtor had no saleable interest in the property sold was entitled to maintain a suit for refund of the purchase money, inasmuch as there was an implied warranty of some saleable interest in the judgment-debtor when the property was put up for sale. The Code of Civil Procedure recognized the right of the purchaser upon some implied warranty to return of the purchase money which had been received by the judgment-creditor. The relationship between the judgment-creditor and the Court sale purchaser was, therefore, in the nature of a contract. In the latter case which was a case under the Code of 1908 an auction purchaser sued in similar circumstances for refund of the purchase money, and it was held that before a person who had purchased property at a Court sale can obtain the right to ask for a refund of the purchase money, he must get the Court sale set aside under the provisions of O. XXI, r. 93. The previous case of this Court in Rustomji Ardeshir Irani v. Vinayak Gangadhar Bhat was referred to but was distinguished on the ground that the case was under the old Code and the language of O. XXI, r. 93, which corresponded to s. 315 of the old Code, was different from the language of the latter.

It was because it was felt that there was some conflict between these two cases that the matter has been referred to a division bench of this Court, and in case of a conflict between two cases of a division bench of this Court it would undoubtedly be necessary, unless we are prepared to say that either the one or the other is wrong, to refer the matter to a full Bench. But when we examine the two cases it is obvious that as a matter of fact there is no such conflict as would require that the matter should be referred to a full bench. The case of Rustomji Ardeshir Irani v. Vinayak Gangadhar Bhat was under the old Code. There was besides one difference between the two cases, viz. whereas in the case of Rustomji Ardeshir Irani v. Vinayak Gangadhar Bhat the auction purchaser had obtained possession of the property as a purchaser and was dispossessed, in the case of Balvant Raghunath v. Bala the auction purchaser had not yet succeeded in obtaining possession and came to the Court with a suit before he had obtained possession. But that obviously is not a distinction which can make a difference in the principle. section 315 of the old code specifically stated, however, that not only when a sale was set aside under the provisions of the old Code but “when it is found that the judgment-debtor had no saleable interest in the property which purported to be sold and the purchaser is for that reason deprived of it,” the purchaser would be entitled to receive back the purchase money. This was interpreted under the old Code to mean that the purchaser would have a right of suit specifically given by that section of the old Code. The case of Balvant v. Bala distinguished the earlier case of this Court on the ground whereas the old Code contained these words they were deliberately dropped from the Code of 1908 which governed the case which had come before the Court in Balvant Raghunath v. Bala. For the reasons which will be mentioned below, we think that this distinction was, with respect, correctly made, and if the earlier case was properly distinguished, then obviously there is no conflict between this case and the latter case.

The result, therefore, is that the case of Balvant Raghunath v. Bala is binding upon us in this case, and in case we find ourselves unable to agree with its reasoning, the only thing which we can do is to refer the matter to a full bench.

It appears to us, however, with respect again, that even though other High Courts have differed from the case in Balvant Raghunath v. Bala that there is no warranty of title in any sense at a Court sale, the view which has been taken by this Court in Balvant Raghunath v. Bala is the only possible view which could be taken under the present Code. It has got to be remembered, in the first instance, that prior to the old Code of 1882 there was no warranty of title in the case of an execution sale wherein the right, title and interest of the judgment-debtor was brought to sale. This was laid down in Dorab Ally Khan v. Abdool Azeez. It is true that in that case property belonging to the judgment-debtor was sold but it was not sub-sequently discovered that he had no saleable interest therein. It was as a matter of fact a case in which the property of a judgment-debtor who had interest in it was sold and the complaint which was made by the auction purchaser who sued to recover the purchase money was that he had been dispossessed of the property by the judgment-debtor himself on the ground that the sheriff who sold the property had actually no authority to hold a sale. But their Lordships of the Privy Council dealt with the question as to whether there was any warranty in Court sales and they specifically answered it in the negative. They referred to the English law upon this subject and then they went on to say (p. 128):

“……although when he has jurisdiction he does not in any way warrant that the judgment-debtor had a good title to it, or guarantee that the purchaser shall not be turned out of possession by some person other than the judgment-debtor.”

They pointed out also at an earlier stage of the judgment (p. 126):

“Now it is, of course, perfectly clear that when the property has been so sold under a regular execution, and the purchaser is afterwards evicted under a title paramount to that of the judgment-debtor, he has no remedy against either the sheriff or the judgment-creditor. This, however, is because the sheriff is authorized by the writ to seize the property of the execution debtor which lies within his territorial jurisdiction, and to pass the debtor's title to it without warranting that title to be good.”

It was pointed out in Balvant Raghunath v. Bala that these words specifically negative a contention that apart from any statute (the reference being to the Code of Civil Procedure whether of 1882 or of 1908) there is a warranty of title in the sense that the creditor who brings the property to sale guarantees that the judgment-debtor has some interest in the property brought to sale, though he may not have exactly that interest which is mentioned in the proclamation of sale.

Mr. Gokhale who appears on behalf of the plaintiff auction purchaser has pointed out to us that even though their Lordships of the Privy Council pointed out that there was no warranty of title where the right, title and interest of the judgment-debtor was brought to sale, a distinction has been made by other High Courts between execution levied in England and execution levied in India. In the case of Mehr Chand v. Milkhi Ram for example, their Lordships of the Lahore High Court referred at page 649 to the case of Kissorimohun Roy v. Harsukh Das. In that case it was held that a judgment-creditor at whose instance execution was levied was liable for damages in a suit at the instance of the person whose goods were attached. Their Lordships of the Privy Council referred in their judgment to the case of Walker v. Olding and then pointed out the difference in procedure when execution is levied in India and in England (p. 443):

“In England the execution of a decree for money is entrusted to the Sheriff, an officer, who is bound to use his own discretion, and is directly responsible to those interested for the illegal seizure of goods which do not belong to the judgment-debtor. In India warrants for attachment in security are based on the ex-parte application of the creditor, who is bound to specify the property which he desires to attach, and is estimated value. In the present case, by the terms of the parwana, no discretion was allowed to the officer of Court in regard to the selection of the goods which he attached: his only function was to secure under legal fence all bales of jute in the respondent's premises which were pointed out by the appellants.”

Their Lordships of the Lahore High Court held consequently that the attachment was the direct act of the decree-holder and they proceeded to draw therefrom the inference that the decree-holder does represent to the Court and the auction purchaser, if not that the property which he asks the Court to attach and sell belongs to the judgment-debtor, at least that he has some saleable interest in it. Mr. Gokhale says that the observations of their Lordships of the Privy Council in Dorab Ally Khan v. Abdool Azeez have reference to the position as it stood before the Code of 1882. After the Code of 1882 the right of an auction purchaser to refund of the purchase money whether by way of a suit or by way of an application in execution was recognised by the Code of 1882, and inasmuch as this right was recognized, it must be taken that the Code of Civil Procedure recognized that there was a warranty of some title in auction sales held in execution and consequently a suit will lie when there is a breach of the warranty.

Now, that was undoubtedly the inference that was drawn by their Lordships of the Lahore High Court from the case of the Privy Council in Kissorimohun Roy v. Harsukh Das and the provisions of the old as well as the new Code. But with respect it does not appear to us that inference follows. It does not follow even from the wording of the old Code and certainly would not follow from the words which have been employed in the Code of 1908. It is true that s. 315 of the old Code specified that the auction purchaser would be entitled to refund of the purchase money not only where the sale was set aside in execution but also when it was found that the judgment-debtor had no saleable interest in the property which purported to be sold and the purchaser is for that reason deprived of it. But as was pointed out in Balvant Raghunath v. Bala it was not necessary to hold under the Code of 1882 that the purchaser who was entitled to file a suit based his claim upon a supposed warranty of title recognised by the code. section 315 of the code specifically stated that the auction purchaser would be entitled to refund of the purchase money when it was found that the judgment-debtor had no saleable interest in the property which purported to be sold and the purchaser was for that reason deprived of it. These words have obviously no application to cases in which the auction purchaser comes to the Court before the confirmation of the sale and gets the sale set aside. The right, therefore, could not be the right of merely applying in execution proceedings and it was, therefore, held that a suit would lie; but a suit might lie for other reasons—other, i.e than a warranty of title. It was pointed out, for example, in the case of Sundara Gopalan v. Venkatavarada Ayyangar that sometimes even a private sale may be rescinded and it may be rescinded even after a conveyance has been executed, e.g, when there is a mutual mistake and it turns out that the vendor had no saleable interest in the property conveyed. The grounds upon which it could be done was mentioned as the equity on which Hitchcock v. Giddings was based. It appears, therefore, that when the Legislature provided by the old Code of 1882 that the auction purchaser was entitled to a refund of the purchase money both by an application and by a suit, they recognized not that there was a warranty of title but that there was an equity in favour of the auction purchaser owing to which it was possible for him to obtain a refund of the purchase money when he discovered subsequent to the sale that the judgment-debtor had no saleable interest in the property. The contention that as a matter of fact there is an implied warranty in execution sales because of the provision of whether the old or the new Code, therefore, fails.

It is contended, however, that even if there is no warranty of any title in a Court sale, a suit would lie upon the equitable consideration that a purchaser who has been misled because of the action of the decree-holder in bringing to sale the property in which the judgment-debtor has no interest and he parts with the purchase money for purchasing the property. The argument is two-fold. In the first instance it is said that there would be a misrepresentation and in the second case it is said that even if the judgment-creditor is not guilty of any misrepresentation the sale could be rescinded by the auction purchaser on the ground of mistake. Now, the case of misrepresentation obviously fails immediately we hold that when a judgment-creditor brings to sale property, he does not give any warranty that the judgment-debtor had any interest in the property. It is only if it could be said that he guarantees that there is some interest in the judgment-debtor that we could say that there is some misrepresentation when the property is brought to sale. It may undoubtedly be a case of mistake because it is obvious that when the judgment-creditor is not fraudulently or honsetly Society misrepresenting the facts, he must be under a mistake as to the judgment-debtor having an interest in the property. But the question which arises is whether any suit would lie in the circumstances, and if a suit would lie, what would be the form of action which the suit should take.

Now, there is some authority for saying that where it is found subsequent to the auction sale that the judgment-debtor had no saleable interest in the property a suit for money had and received on the ground of total failure of consideration would lie. That such a suit would lie when the officer who held the sale had no authority to do so was pointed out by their Lordships of the Privy Council in the case mentioned above, Dorab Ally Khan v. Abdool Azeez. We would not go, however, into that question in this case because the action which the plaintiff brought in this case was certainly not an action for money had and received. Whenever there is such an action brought what must be made out is total failure of consideration. In the case of Dorab Ally Khan v. Abdool Azeez their Lordships pointed out the difficulties which might arise owing to the auction purchaser having got into possession of the property and retained possession for some time. Mr. Gokhale says that in this case when a decree was obtained by the adopted son, he perhaps obtained a decree against the auction purchaser for mesne profits also, so that his client may have no difficulty in showing that as a matter of fact there was a total failure of consideration. That may or may not be, but the fact remains that the suit which was brought was not a suit for money had and received with the result that the judgment-creditor has had no opportunity of showing that as a matter of fact some consideration was received, and we cannot, therefore, now allow the appellant to go into that question.

Mr. Gokhale argues, however, that a suit would lie upon the equity which has been mentioned in Hitchcock v. Giddings irrespective of the question of the consideration having totally failed. Now, undoubtedly suits upon equities frequently lie. As a matter of fact a suit for money had and received is also a suit which is based upon the equity recognized by law Courts in certain cases. But we find no authority whatsoever for the proposition that a suit for return of the purchase money by an auction purchaser will lie even without his showing that as a matter of fact there has been a total failure of consideration. It is true that a defence was recognized in Hitchcock v. Giddings. That was a case in which after a conveyance a security was created in order to secure the purchase money, and when subsequently a suit was brought upon the bond, the purchaser met the plaintiff with a contention that in the property which had been sold the vendor had as a matter of fact no interest. In that case there was a contract which was entered into by the purchaser and the contract was entered into because the purchaser was under a mistake of fact, viz. that the vendor had the interest Which he was conveying. The matter was, therefore, in the stage of a contract, and it was because it was at the stage of a contract that when subsequently it was found that both the vendor as well as the vendee were mistaken about a matter of fact, viz. the judgment-debtor's interest in the property, it was held that the purchaser was entitled to avoid the contract upon which the suit was filed. We do not think that when the matter has gone beyond the stage of a contract when the purchaser has purchased property with the result that he has got the whole of the interest of the judgment-debtor he can come and say that he should be allowed to file a suit upon an alleged equity deducible from Hitchcock v. Giddings. Not only has no authority been pointed out to us upon which it can be held that a suit can in those circumstances be filed, but even though in a number of cases the view has been taken that a suit would lie no one has put the decision upon the equity in Hitchcock v. Giddings.

In that case the question would necessarily have to be determined upon the Codes and the Code with which we are concerned in the present case is that of 1908. Now, the Code of 1882 undoubtedly gave the auction purchaser a right to bring a suit when it was subsequently discovered, subsequently, i.e after the sale was confirmed, that the judgment-debtor had no saleable interest in the property. But that view was taken because of the words “when it is found that the judgment-debtor had no saleable interest in the property purported to be sold and the purchaser is for that reason deprived of it.” These words have now been omitted from the Code of 1908. The omission was made after the Courts had taken the view that the words relied upon gave a right of suit and the only conclusion which we can draw, therefore, from the omission of the words, is that the omission was deliberate and it was intended to take away whatever rights were given by the words. We do not indeed intend to suggest that the omission of the words takes away any independent rights which might have been possessed by the auction purchaser under the ordinary law. But the omission certainly takes away the rights which these words gave for the first time. It is obvious, therefore, that if there is no independent right of action, then there is no right of action under the Code of 1908. The right which it gives is a limited right given for equitable considerations and an auction purchaser would be entitled to refund of the purchase money only if the conditions under which the present Code provides that he would be entitled to the purchase money are fulfilled. As was pointed out in Balvant Raghunath v. Bala under the provisions of O. XXI, r. 93, those conditions are that, in the first instance, there must have been an application made within time by the auction purchaser and upon that application the sale must have been set aside. It is only when the sale is set aside upon such an application that the Code of 1908 gives a right to the auction purchaser to obtain a refund of the purchase money. We are aware that there are no words in the section which take away any right which the auction purchaser may have under the general law. We are not, therefore, reading the Code as if it meant that notwithstanding anything in the general law an auction purchaser would not be entitled to refund of the purchase money, unless he, in the first instance, gets the sale set aside. The view which appeals to us is that there is no independent right of suit, and inasmuch as the right given by the present Code can only be exercised when the condition under which the Code says that it could be exercised have been fulfilled, it cannot be exercised otherwise. In this case, may be through no fault of the auction purchaser, those conditions are not fulfilled. Consequently the auction purchaser is not entitled to any refund of purchase money by filing a suit.

Mr. Gokhale contends, however, that even if the present Code does not give any assistance to his client, we should take this case as a case coming either under the specific words of s. 65 of the Indian Contract Act or as governed by the principle upon which that section is based. Now, s. 65 of the Contract Act refers to agreements discovered to be void or an agreement which amounted to a contract at the inception becoming void, though the principle of that section has been applied by their Lordships of the Privy Council even when the matter has gone beyond the stage of the contract and a transfer as a matter of fact has taken place. But the principle upon which the section as well as the decision proceed is the right of one party to a contract for the restoration of the advantage which has been received by the other party either because both the parties originally thought the contract to be good but it was subsequently discovered to be a void agreement or because of some action on the part of the other contracting party the contract subsequently becomes void. In this case the transfer is not a void transfer. As a matter of fact the transfer in this case conveys to the auction purchaser all the interest of the judgment-debtor which would be in this case the adoptive mother. She certainly had no interest in the property at the time of the sale, and this being a sale held in execution, the principle of s. 43 of the Contract Act may not have application, but if it had as a matter of fact been a transfer by her, the principde would have had application. That shows the difference between a case like this and a transfer which is void or which becomes void subsequently. It is obvious, therefore, that neither s. 65 of the Contract Act itself nor the principle upon which that section is based can be applied to a case like the present.

It is true that their Lordships of the Lahore High Court in the full bench case which I have mentioned above referred to this section, but they referred to this section as well as to other sections of the contract act merely by way of analogy. The ground upon which they based their conclusion, viz. that the auction purchaser was entitled to file a suit for refund of the purchase money, was two-fold: (1) there was a representation by the judgment-creditor when he brought the property to sale that the judgment-debtor had some interest in the property. They said consequently that there was a misrepresentation by the judgment-debtor for which subsequently the auction purchaser was entitled to avoid the transfer. In the second instance they said that there was also a mistake by both the parties and an action for money had and received would, therefore, lie. Immediately we hold that there is no representation by the judgment-creditor that the judgment-debtor has some interest in the property, the argument that the sale can be avoided because of misrepresentation fails. In our view, therefore, it is not possible to accept the view that an auction purchaser who has not come to Court to set aside the sale in time had either independently or under the present Code a right of suit other than a suit for money had and received.

Mr. Gokhale then points to the full bench case of the Allahabad High Court, Bindeshri Prasad Tiwari v. Badal Singh, and says that this case has got a peculiar importance, inasmuch as the view of this Court in Balvant Raghunath v. Bala proceeded upon an earlier case of the Allahabad High Court, Nannu Lal v. Bhagwan Das. In that case, Bindeshri Prasad v. Badal Singh, the property belonging to a minor was sold in execution of a decree obtained against him. Subsequently in a suit filed by him, this decree was set aside on the ground that it was not binding upon him. On the strength of the decree, the minor ousted the auction purchaser from possession of the property purchased by him. The auction purchaser then applied under s. 47 of the Civil Procedure Code for refund of the price which had been paid by him for the property at the auction sale. It was held that the auction purchaser was entitled to a refund of the purchase money. The case was not, therefore, concerned with any question about the right of suit of an auction purchaser. In the second instance, the result in that case followed the principle which was laid down by their Lordships of the Privy Council in the case of Dorab Ally Khan v. Abdool Azeez. Their Lordships of the Privy Council pointed out in that case that, when an auction purchaser purchased property, he was entitled to assume that, when the sale was held under the orders of the Court, the officer who held the sale had authority to hold it. Similarly, it was held by their Lordships of the Allahabad High Court in the case of Bindeshri Prasad Tiwari v. Badal Singh that, when property was sold in execution through the Court, the auction purchaser was not required to inquire as to whether the decree was or was not a valid decree as against the defendant against whom it was obtained. When, therefore, subsequently the decree was set aside in a suit filed by one of the judgment-debtors, the auction purchaser was entitled to refund of the purchase money. It is obvious, therefore, that the case was decided upon an entirely different principle which has no application to cases in which the decree is valid, the sale takes place under the authority of a proper Court, and the officer who holds the sale has got authority to hold it. In such a case, the only thing upon which the auction purchaser can fall back is that the judgment-debtor had no interest in the property brought to sale at the date of the sale. That fact can only be of help in a suit for money had and received.

The appeal must be dismissed with costs.

Appeal dismissed.

J.G.R