Maclean, C.J:— This is a suit by an auction-purchaser claiming from the decree-holder a refund of a portion of the purchase-money paid by him, on the ground that, instead of the area of the property sold being, 400 bighas, as stated in the sale proclamation, it is only 250 bighas, and also asking for abatement of rent in respect of such deficiency of area.

The auction sale was held on the 17th June 1893; the purchase-money was Rs. 1,200; the sale has been confirmed and the sale certificate granted.

The suit was instituted on the 15th March 1895. The sale proclamation, which gave particulars and a description of the property to be sold, is not before us; but we are informed that the property was described as a tenure consisting of 400 bighas within certain boundaries.

The suit is based upon the alleged fraud of the decree-holder. It is alleged that the decree-holder made false and fraudulent allegations in respect of the area of the property mentioned in the proclamation of sale, and the plaintiff says that Rs. 750 was the true market value of the 250 bighas, but there is no finding by the Lower Court as to this, nor is there any finding that the plaintiff has sustained any loss, and there was no condition in the sale proceedings as to compensation for errors or misdescription. The defendant, the decree-holder, has offered the plaintiff to pay him back his purchase-money and release him from his purchase, but this offer has been refused.

The Munsiff gave a decree in plaintiff's favour for the compensation claimed, but the Lower Appellate Court reversed that decree and held that, in the circumstances, the plaintiff was not entitled to any compensation. He finds as a fact that there is not an tota of proof to substantiate the charge of fraud which has been imputed to the decree-holder, and he also finds that there is good ground for saying that the plaintiff knew all about the property prior to his purchase.

I am not prepared to agree with the view of the learned Subordinate Judge that, in order to enable the plaintiff to successfully claim compensation, it is essential for him to make out a case of fraud against the decree-holder, a view which he bases upon the case of Abdullah Khan v. Abdur Rahman Beg in the Allahabad High Court. Here, no doubt, as I have said, the plaintiff's case is based upon fraud; he has so framed his case and failed, and I am not sure that, strictly, it ought not to be dismissed. But it has been urged that, irrespective of any fraud on the part of the defendant, the plaintiff is entitled to compensation by reason of the deficiency in the quantity of land actually sold. Had he discovered the difference in quantity before the matter had been completed, his claim in effect would have been for specific performance with compensation. There is but little authority in the Indian Courts on the subject, nor is there anything in any of the Codes or Statutes which assists us.

The only direct authority in the Indian Courts bearing upon the point is a decision of Mr. Justice Sale sitting on the Original Side in the case of Kissory Mohan Roy v. Kali Charan Ghose, in which he followed the decision of Vice-Chancellor Malins in the case of Whittemore v. Whittemore(3). That was a different case from the present. There the purchase-money was still in Court; the purchaser had, by reason of the misdescription, sustained a substantial loss of over Rs. 3,000; and the vendor, rather than that the sale should be rescinded, was willing that the compensation should be paid. Moreover, that was the case of a sale on the Original Side of the Court, and not in the Mofussil, and different considerations apply.

It is not necessary to discuss such cases as In re Turner and Skelton and Palmer v. Johnson, which decided, notwithstanding the view of Vice-Chancellor Malins in Allen v. Richardson, that the fact of a conveyance having been taken by the purchaser does not preclude the right to compensation, if the conditions of sale provide for it. That proposition has not been disputed to-day. It may perhaps be open to doubt how far, in the case of sales under decrees in suits not on the Original Side, and having regard to the provisions of the Code of Civil Procedure, the principles of English law as to specific performance and compensation apply to cases in this country. No doubt, according to English law, it is “a general rule of specific performance that the purchaser shall have what the vendor can give, with an abatement of the purchase-money for so much as the quantity falls short of the representation;” see Hill v. Buckley(4). But here the deficiency is so large, nearly one-half the quantity of land, that it would, in the exercise of that judicial discretion which is vested in the Court, in cases of specific performance, be unfair to apply that rule, which must be confined within certain limits. I may, on this point, refer to the case of Earl of Durham v. Sir Francis Legard(5), a case in which a person bought about one-half of the quantity of land that he intended to buy and the vendors intended to sell. There it was held to be a mistake, and not a case for compensation. The same might be said here, if the English authorities apply.

No question of the plaintiff's right to rescind arises in this case, for he does not wish to do so, and has, as I have said, refused the offer made by the defendant to return him his money. And there is the further question whether in any Court compensation could be obtained from the decree-holder, if he has only received out of the purchase-money the amount of his debt, and the balance has gone to the judgment-debtor. The appeal is dismissed with costs.

As regards the cross-appeal 758 of 1899 by the defendant against the plaintiff and others, very little has been said about it. The question whether the measurement, if any, was to be made with the survey chain in use in the per-gunnah or that in use by Government has not been pressed, having regard to the terms of the lease of the 30th Falgun 1277. Nor do I think that there is any ground for interfering with the decision of the Court below upon the question of the abatement of rent. Whether we regard the point as covered by the provisions in the lease as to measurement, or whether we proceed upon the principle that the land is in quantity not nearly so much as it was supposed to be, the plaintiff in either view is entitled to an abatement.

One variation, however, has to be made upon this head in the terms of the decree of the Court below. The decree ought not to give the plaintiff a larger abatement of rent than he has asked for. The plaintiff only asks that the rent should be reduced to Rs. 187-8, whilst the decree of the Court below has reduced it to Rs. 171-2-11. The decree must be varied in this respect.

We do not think there is anything in the question of limitation set up by the appellant on this appeal.

Subject to the above variation in the terms of the decree, this appeal must also be dismissed with costs.

Banerjee, J.:— I agree with the learned Chief Justice in the conclusion he has arrived at in these cases.

The two appeals arise out of a suit brought by the appellant in appeal No. 409 and one of the respondents in the other appeal against the predecessor in title of the respondent in the first-mentioned appeal, and the appellant in the second, who was made defendant No. 1, and certain other persons, for recovery of a certain sum of money as compensation, and for abatement of rent of a maurasi makurari tenure on the allegation that the defendant No. 1, in execution of a rent decree held by him against the other defendants, brought the said tenure to sale, falsely and fraudulently representing the same to consist of 400 bighas, when it really contains not more than 250 bighas; that the plaintiff was, by reason of the said representation, induced to bid Rs. 1,200 for the tenure, when, if the true area had been stated, he would not have bid more than Rs. 750; that the defendant No. 1 took the whole of the money realized, in satisfaction of his claim against the defaulting proprietors of the tenure, and that the plaintiff is entitled to recover from the defendant No. 1 Rs. 450, the difference between the said sum of Rs. 1,200 and Rs. 750, and to have the rent reduced to Rs. 187-8.

The defence of defendant No. 1 was a denial of the allegation of fraud and a denial of the plaintiff's right to recover compensation and obtain abatement of rent.

The first Court found for the plaintiff, and gave him a decree awarding compensation as claimed, and reducing the rent to Rs. 160-15-3. On appeal by the legal representative of the defendant No. 1, the Lower Appellate Court, while agreeing with the first Court that the area was less than that stated in the sale proclamation and reducing the rent to Rs. 171-2-11, has dismissed the claim for compensation, holding that the allegation of fraud has not been proved, and that the plaintiff could succeed only if the fraud alleged was made out.

Against this decree of the Lower Appellate Court both parties have appealed.

The plaintiff, in his appeal, contends that, apart from fraud, he is entitled to recover compensation when the area of the tenure purchased by him is shown to be less than that stated at the time of the sale.

The defendant, in his appeal, urges that the claim for abatement of rent is against the terms and conditions of the lease by which the tenure was created; and that the rent ought, in no case, to have been reduced to anything less than Rs. 187-8, the sum fixed by the plaintiff in his plaint.

I shall consider the plaintiff's appeal first.

The contention on behalf of the plaintiff appellant is shortly this, that though, according to the finding of the Lower Appellate Court, no fraud is established, yet, as there was a misstatement as to the area of the tenure advertised for sale, and the decree-holder, defendant No. 1, was responsible for the misstatement, and has taken away the whole of the sale-proceeds, he is bound, according to justice, equity and good conscience, to refund to the plaintiff a proportionate amount of the purchase-money as compensation. And, in support of this contention, Dart, on Vendors and Purchasers, 6th edition, pp. 735 and 1352, Kissory Mohun Roy v. Kali Charan Ghose and Whittemore v. Whittemore are relied upon. On the other hand, it is argued for the defendant respondent that the case of fraud, which is the only case upon which he could be made liable for compensation, having failed, the claim for compensation has been rightly dismissed; that, even if the plaintiff could, in the absence of fraud, recover compensation, he could do so only as against the judgment-debtor, the party ultimately benefited by the innocent misstatement; that, in no case, can the auction-purchaser recover compensation against the decree-holder in the absence of fraud, without showing that he has sustained loss, and that the authorities cited cannot govern a case like the present.

After considering the arguments on both sides, I am of opinion that the plaintiff has failed to make out his claim for compensation in this case. The considerations upon which the right of a purchaser at a private sale rests, to recover from the vendor compensation for deficiency in the area of the property sold, are evidently very different from those upon which a purchaser, at a sale in execution of the decree, can claim such compensation. Conceding that a purchaser at an execution sale is entitled to claim compensation from the decree-holder for any innocent misdescription, it is clear that he must prove that he has sustained loss by reason of such misdescription. It is not enough for him to say, as a purchaser at a private sale can say, that he paid the price for an area stated, and as that is found to be less, he is entitled to proportionate compensation, for the price paid by him is determined, not by contract; but by competition, the object of which is to secure fair price, and notwithstanding the over-statement of the area, the highest bid may not go beyond the fair value of the property. Moreover, if the decree-holder, in such a case, is to be held liable for compensation, he suffers for an innocent mistake, while the party benefited is a different person, namely, the judgment-debtor; and it is but fair that, before such liability can arise, the auction-purchaser should show that he has sustained loss by reason of the misdescription, that is, that the price paid by him is in excess of the fair value of the property and that he paid that price by reason of the misdescription. But this the plaintiff never attempted to establish. On the contrary, there is a finding by the Lower Appellate Court that the plaintiff knew all about the property. The plaintiff based his claim upon fraud, and that case failing, he now rests it upon the bare fact that there was an exaggerated statement of the area. I may add that the defendant respondent offered to take back the property upon payment of the price paid by the plaintiff, but the latter declined to accept the offer.

It remains now to consider the authorities cited. The passages quoted from Dart on Vendors and Purchasers relates to private sales and sales by the Court of Chancery, which are governed by rules somewhat different from those regulating execution sales under our Code of Civil Procedure. The correctness of much that is said in the decision in Whittemore v. Whittemore has been doubted in In re Terry and White's Contract. And, as for the case of Kissory Mohan Ray v. Kali Charan Ghose, compensation was there allowed while the purchase-money was still under the control of the Court, a circumstance which creates a material difference between that case and this. For there the compensation was really paid out of the purchase-money, and so the party who had to pay it was not the decree-holder, but the judgment-debtor.

For the foregoing reasons, I think the plaintiff's appeal must fail.

In the appeal of the defendant, the two points really pressed were, first, that the claim for abatement was opposed to the terms of the lease, and, second, that in no case ought the rent to have been reduced below Rs. 187-8, the amount specified in the plaint.

In support of the first point, the only provision of the lease relied upon is the clause providing for a measurement before the full rate is fixed. But that clause does not bar any claim for abatement, while, on the contrary, an earlier clause in the lease contemplates measurement of the lands at any future time. The first contention of the defendant appellant must therefore fail.

The second contention in the defendant's appeal should, in my opinion, succeed; and the learned Vakil for the plaintiff very properly concedes that must be so.

The result is that appeal No. 409 must be dismissed with costs, and appeal No. 758 allowed to this extent that the decree of the Lower Appellate Court will be modified by fixing the reduced rent at Rs. 187-8 a year. As this last-mentioned appeal succeeds only partially and to a very limited extent, the respondents will have their costs.

S.C.G

Appeal No. 409 dismissed.

Appeal No. 758 partly allowed.