Judgement

Consolidated Appeal and Cross-Appeal (No. 7 of 1921) from a decree of the High Court (December 14, 1916) varying an order of the Subordinate Judge of Godda.

Upon an appeal to the Privy Council in 1913 (L. R. 411. A. 38.), a confirmation by the Subordinate Judge in 1904 of a sale of immovable property in execution of a money decree, and the sale certificate made thereunder, were set aside. The Order in Council reversed a decree of the High Court at Calcutta dismissing an appeal from the sale certificate. The present proceedings were commenced in 1915. The judgment-debtor (now represented by the first five appellants) petitioned the Subordinate Judge for restoration of the property, with mesne profits. The auction purchasers (now represented by the first two respondents) petitioned, claiming (inter alia) that the restoration of the property should be subject to the repayment to them of the purchase price, also the amount which they had paid to discharge two bonds secured upon the property. The facts appear more fully from the judgment of the Judicial Committee.

The Code of Civil Procedure, 1908, by s. 144, provides that where a decree is varied or reversed, the Court of first instance shall on application " cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree....."

The Subordinate Judge ordered the restoration of the property with mesne profits, making no order as to the purchase price or the amount paid in discharge of the bonds. An appeal to the High Court was allowed, the learned judges (Roe and Jwala Prasad JJ.) making a decree in the terms stated in the present judgment.

1922. Dunne K.C. and Kenworthy Brown for the appellants (judgment-debtors). That which was sold in 1904 was, as appears from the judgment of the Privy Council, part of the incumbered share of the property. The judgment of the Board did not affect that sale, and until it is set aside the purchasers are not entitled to the return of the price which they paid. Under s. 144 of the Code no order could be made which was not consequential upon the Order in Council.

De Gruyther K.C. and S. Hyam for the respondents (purchasers). The sale transaction was void, the parties never being ad idem, and under s. 65 of the Indian Contract Act the appellants were bound to restore the price. There was power under s. 144 of the Code to provide for the return of the price as a condition to the restoration of the property. But apart from that section, the Court had inherent jurisdiction to make the order as one equitably dealing with the position Rodger v. Comptoir dEscompte de Paris (L. R. 3 P. C. 465, 475.); Mookond Lal Pal v. Mahomed Sami Meah. (( 1887) I. L. R. 14 C. 484, 486.)

June 19. The judgment of their Lordships was delivered by

LORD CARSON. The question to be decided in this appeal arises out of an order on appeal made by His Majesty in Council dated December 19, 1913, which set aside an auction sale of certain landed property held on July 27, 1904, in execution proceedings in the Court of the Subordinate Judge of Godda. The case before this Board is reported at L. R. 41 I. A. 38.

Raja Thakur Barmha, since deceased, the predecessor in title of the appellants 1-5 (hereinafter referred to as the judgment-debtors) was the owner of a full 16-annas share of a village called Patsanda. Ten of the said shares were incumbered and six were unincumbered, save that two bonds had been executed by the Raja in favour of one Gobardhan Das and others, which purported to create a charge on a 3-annas share in the said mahal as security for the said Gobardhan Das for Rs.23,965 and Rs.532.

Six-annas share of the incumbered property was attached for a judgment debt in execution of a decree obtained by the respondents third party, and sold on July 27, 1904. The respondents first and second parties are the representatives of the original auction purchasers and are hereinafter referred to as