Kulwant Sahay, J.:— (After stating the facts, as set out above, proceeded as follows): In order to decide the point raised in this appeal it is necessary to examine the law as it now stands after the various changes thereof by the legislature from time to time in regard to the right of auction-purchasers at execution sales in this behalf.
Regulation VII of 1825 which provided for the first time for the sale of houses, gardens, orchards and small portions of land held exempt from public assessment by the Civil Court instead of through the Collectors, provided, in section 3(3), for setting aside the sale if application was made within thirty days of the sale on the ground of material irregularity in the sale. Clause (4) of section 3 provided that the purchaser at such sale was entitled to receive back the purchase money on restoring any property delivered to him if the sale was set aside as invalid under clause (3) or on any account whatsoever. Clause (7) provided that it should be clearly explained to the bidders that nothing was guaranteed to them in the land beyond the rights and interests therein of the individuals answerable for the amount of the decree. It will be noticed that there was no provision in this Regulation for setting aside the sale on the application of the auction-purchaser on the ground that the judgment-debtor had no saleable interest in the property sold, nor did the law provide for a refund of the purchase money to the auction-purchaser on the ground of there being no saleable interest in the judgment-debtor. The auction-purchaser was only entitled to a refund of the purchase money in case the sale was set aside on the ground of material irregularity and the purchaser was compelled to restore the property delivered to him as a result of setting aside the sale or on any other ground whatever. There was nothing in the law to bar a regular suit by the purchaser.
Then came the Civil Procedure Code (Act VIII of 1859). Section 249 directed that the Sale Proclamation shall declare that the sale extends only to the right, title and interest of the defendants in the property specified therein. Section 256 provided for application for setting aside sales on the ground of material irregularity in publishing and conducting the sale, if the applicant proved that he had sustained substantial injury by reason of such irregularity. Section 257 empowered the Court to set aside a sale on the ground of material irregularity and substantial injury Section 258 provided that:
“whenever a sale of immoveable property is set aside the purchaser shall be entitled to receive back his purchase money with or without interest in such manner as it may appear proper to the Court to direct in each instance.”
With reference to this section 258, it was decided by the Courts that a purchaser at a sale in execution of a decree could not recover his purchase money if it was subsequently found that the judgment-debtor whose property he had purchased had no saleable interest therein, and that section 258 applied only to cases in which a sale had been set aside for irregularities in publishing and conducting the same [Dorab Ally Khan v. Khajah Moheeooddeen, Framji Besanji Dustur v. Hormasji Pestanji Framji, Hira Lal v. Karim-un-Nisa and Ram Narain Singh v. Mahtab Bibi]. The auction-purchaser, under the Act of 1859, purchased at his own risk. All that the Court purported to sell under the distinct provision of section 249 of the Code was the right, title and interest of the judgment-debtor, and if it was subsequently found that the judgment-debtor had no interest, the purchaser could not obtain a refund of the purchase money; there being no guarantee of title the purchaser took at his peril and if he failed to obtain possession of the property or was dispossessed therefrom he had no remedy at law to get back his money.
Act X of 1877, by which the Code of Civil Procedure of 1859 was repealed, contains provisions similar to those in Act XIV of 1882, and it will, therefore, be sufficient to examine the provisions 5 relating to the point under consideration in the Act of 1882.
Section 235 of the Act of 1882 provided that the application for execution of a decree shall be in writing verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain certain particulars set out therein in a tabular form. Section 237 provided that when an application is made for the attachment of immoveable property belonging to the judgment-debtor it shall contain at the foot a description of the property sufficient to identify it, and also a specification of the judgment-debtor's share or interest therein to the best of the belief of the applicant and so far as he has been able to ascertain the same. Section 237 provided that when any property was ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court, and then it sets out the particulars which the proclamation shall contain. These particulars consist of the description of the property, the revenue assessed upon it, any incumbrance to which the property was subject, the amount for the recovery of which the sale was ordered, and clause (e):
“every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property.”
Section 311 provided that the decree-holder or any person whose immoveable property has been sold may apply to the Court to set aside the sale on the ground of material irregularity in publishing or conducting the sale; but that no sale was to be set aside on the ground of irregularity unless the applicant proved to the satisfaction of the Court that he had sustained substantial injury by reason of such irregularity. Section 312 provided that if no application, such as one contemplated by section 311, was made, or if such application be made and the objection be disallowed, the Court shall pass an order confirming the sale as regards the parties to the suit and the purchaser. If such application be made, and if the objection be allowed, the Court shall pass an order setting aside the sale; and then the last clause of section 312 provided:
“no suit to set aside on the ground of such irregularity, an order passed under this section shall be brought by the party against whom such order has been made.”
Section 313 authorized the purchaser at the execution sale to apply to the Court to set aside the sale on the ground that the person whose property purported to be sold had no saleable interest therein, and the Court was upon such application to make such order as it thought fit. Section 315 provided as follows:
“When a sale of immoveable property is set aside under section 310(a), 312 or 313,
or 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 shall be entitled to receive back his purchase money (with or without interest as the Court may direct) from any person to whom the purchase money has been paid,
the repayment of the said purchase money and of the interest (if any) allowed by the Court may be enforced against such person under the rules provided by this Code for the execution of a decree for money.”
Now, these are the essential provisions relating to the point under consideration in the Code of 1882. Provision was made for the purchaser to apply for setting aside the sale on the ground that the person whose property he had purchased had no saleable interest therein, and if the Court found that the person whose property it had purported to sell had no saleable interest in the property sold and that the purchaser was for that reason deprived of that property, then a declaration was to be made that the purchaser was entitled to receive back his purchase money from any person to whom it had been paid, and that the repayment of such purchase money could be enforced against such person under the rules provided by the Code for execution of a decree for money. Under this Code the Courts had held that a regular suit by the purchaser for a declaration that the judgment-debtor whose property he had purchased had no saleable interest therein and for refund of the purchase money was not barred by the provisions of section 315 of the Code. The leading case on the point is the Full Bench decision of the Allahabad High Court in Muma Singh v. Gajadhar Singh. This case was followed in a number of cases in the other Courts [Kishun Lal v. Muhammad Safdar Ali Khan, Pachayappan v. Narayana, Ram Kumar Saha v. Ram Gour Saha, Hori Doyal Singh Roy v. Sheikh Samsuddin and Nityanand Roy v. Juggat Chandra Guha].
Then came the present Code of Civil Procedure (Act V of 1908).
Order XXI, rule 66, of the present Code provides for the proclamation of the intended sale to be made by the Court ordering the sale. sub-rule (2) of rule 66 contains a provision for notice to be given to the decree-holder and the judgment-debtor before drawing up the sale proclamation, and this is a new provision which is not to be found in the Act of 1882. The particulars required to be specified in the sale proclamation are the same as those under the Act of 1882. sub-rule (2) provides that every application for an order for sale under this rule should be accompanied by a statement signed and verified containing the matters required by sub-rule (2) to be specified in the sale proclamation, and this provision is also a new provision not to be found in the Code of 1882. This rule provides for a judicial enquiry in order to settle the particulars to be specified in the sale proclamation.
Order XXI, rule 89, provides for setting aside sales on deposit of the decretal amount and compensation of 5 per centum to be paid to the auction-purchaser, if such deposit is made within thirty days of the sale. Rule 90 provides for an application for setting aside a sale on the ground of material irregularity or fraud in publishing or conducting the sale, provided the applicant has sustained substantial injury by reason of such irregularity or fraud. Rule 91, which corresponds with section 313 of the Code of 1882, runs as follows:
“The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.”
Rule 92 runs thus:
“(1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:
(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the. Court shall make an order setting aside the sale.
Provided that no order shall be made unless notice of the application has been given to all persons affected thereby:
(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.”
It is noticeable that whereas section 312 of the Code of 188? referred only to an application for setting aside a sale on the ground of irregularity and consequent injury as provided in section 311 which corresponds with rule 90 of the Code, 1908, rule 92, applies not only to applications referred to in rule 90 but also to those referred to in rules 89 and 91, and the effect of including applications under rule 91 is that the provision contained in sub-rule (3) and providing that:
“no suit to set aside an order made under this rule shall be brought by any person against whom such order is mads,”
is now made applicable to applications by auction-purchasers under rule 91 also.
Then rule 93 provides that:
“where a sale of immoveable property is set aside under rule 92 the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest, as the Court may direct, against any person to whom it has been paid.”
It will be noticed that the provision in section 315 of the Code of 1882 to the effect that:
“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”
is omitted, and the provision that:
“the repayment of the purchase money and of interest allowed by the Court may be enforced against such person under the rules provided by this Code for the execution of a decree for money”.
has also been omitted, and, in lieu of the words:
“shall be entitled to receive back”
in section 315, rule 93 contains the words:
“shall be entitled to an order for repayment.”
Therefore, 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 (3) of rule 92 no suit can be maintained to set aside that order. To my mind the present Code of Civil Procedure 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 under section 315 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 choose, 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 XXI, rule 91, of the Code.
This view has been held in a number of recent cases of the different High Courts [Ram Sarup v. Dalpat Rai, Balwant Raghunath v. Bala, Tirumalaisami Naidu v. Subramanian Chettiar, Juranu Mahamad v. Jethi Mahamad and Banka Behari Das v. Guru Das Dhar]. A contrary view has been taken by a Division Bench of the Lahore High Court in Asadullah Khan v. Karam Chand; but with very great respect to the learned Judges I am unable to agree with them. A comparison of the provisions in the Code of 1908 with those in the previous Codes leaves no doubt in my mind that under the present Code a regular suit is not maintainable. I am therefore of opinion that the decision of the learned Subordinate Judge on the point that the suit was not maintainable is correct.
It has been argued by the learned Vakil for the appellant that the provision in the present Code contained in Order XXI, rule 66, as regards the settlement of the sale proclamation, shows that in execution sales held by Court under the present Code there is a warranty of title and that the auction purchaser, if he is subsequently deprived of the property, will be entitled to maintain a suit on the ground of this warranty. To my mind there is no distinction in the provisions of the present Code from those in the earlier Codes on this point. All that is sold and is proclaimed for sale is the interest of the judgment-debtor in the property advertised for sale. The only innovation in the present Code is that in order to settle the sale proclamation the Court has to make some sort of judicial enquiry, but it has been held that the result of such enquiry made for the purpose of settling the sale proclamations will not operate bar to any party in a subsequent proceeding relating to the setting aside of the sale. For instance, it has been held that the valuation of the property proclaimed to be sold, as given in the sale proclamation which is arrived at after a judicial enquiry, can be re-opened in a proceeding for setting aside the sale, and it is open to the judgment-debtor to prove that the value of the property was more than what was stated in the sale proclamation. There is, therefore, no substance in the argument of the learned Vakil that Order XXI, rule 66, has made any such change in the law as regards warranty and the position of an auction-purchaser is, to my mind, no better in this respect under the present Code than what it was under the old Code.
Next it has to be noticed that assuming that the present suit was maintainable nothing has been shown as to why the sale should be set aside, and how the plaintiff is entitled to recover the purchase money. It will be remembered that the plaintiff is one of the sub-lessees of the underground rights, he is in possession as such sub-lessee, he has obtained a sale certificate in pursuance of his purchase, and there is no allegation, much less proof, that his title or possession has been disturbed by the purchaser at the previous sale of the 15th of September, 1919. Indeed the allegation of the contesting defendants is that the purchaser at previous sale, namely, the defendant no. 10, is merely a benamdar for the present plaintiff, and the evidence adduced in the case lends support to such contention. Moreover, the decree in the execution of which the plaintiff made his purchase was a mortgage decree and the mortgaged property was ordered to be sold therein. The decree in execution of which the defendant no. 10 made his purchase was also a mortgage decree; but his purchase must be held to be subject to the mortgage in favour of the defendants 1 to 3, and even if the defendant no. 10 is a real purchaser and not a benamdar, for the plaintiff he cannot disturb the position of the plaintiff and his purchase was subject to the mortgage decree of the defendants 1 to 3. Under these circumstances, even if the present suit was maintainable, the plaintiff has made out no case for a refund of the purchase money
The result is that the decree of the Subordinate Judge is confirmed and the appeal is dismissed with costs.
Jwala Prasad, J.:— I agree.
Appeal dismissed.