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Andhra Pradesh High Court
Judges : M.SESHACHALAPATI
Rachamsetti Pedda Malliah - Appellant
Versus
Adigopala Brahmayya - Respondent
Decided On : 09-01-58
SMALL CAUSE COURT - SUIT FOR RECOVERY OF MONEY DEPOSITED IN COURT - COURT SALE - AUCTION PURCHASER - NO SALEABLE INTEREST IN PROPERTY - REFUND OF MONEY - LIMITATION - ARTICLE 97 OF THE LIMITATION ACT APPLIES.
Fact of the Case:
Plaintiff purchased property in a court auction and deposited the amount in court. The property was later found to have no saleable interest, and the plaintiff sued to recover the money deposited. The defendant argued that the suit was not maintainable and was barred by limitation.
Finding of the Court:
The court held that the suit was maintainable and that Article 97 of the Limitation Act applied. The court found that the plaintiff was entitled to recover the money deposited.
Issues: 1. Whether the suit was maintainable? 2. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The court held that the suit was maintainable, relying on the Full Bench decision in Macha Koundan v. Kottora Koundan AIR 1936 Mad 50, which held that where a court sale turns out to be futile by a finding in another suit, the only remedy that the party has is a regular suit and not an application under Order 21 Rule 93 of the Civil Procedure Code. 2. The court held that Article 97 of the Limitation Act applied, relying on the decision of the Privy Council in Hanuman Kamat v. Hanuman Mandar, ILR 19 Cal 123 (PC), which held that Article 97 applies to a suit to recover money upon an existing consideration which afterwards fails.
Final Decision: The court dismissed the revision petition with costs.
( 1 ) THIS is a Civil Revision Petition under Section 25 of the Provincial Small Cause Courts Act against the decision of the learned District Munsif of Repalle in S. C. S. No. 253 of 1954. The suit was instituted by the first respondent for the recovery of a sum of Rs. 356-3-6 being the amount deposited in S. C. No. 273 of 1949 by the plaintiff under the following circumstances:
( 2 ) THE plaintiff, 1st: respondent in the revision petition, instituted a suit against the 2nd respondent S. C. 273 of 1949. on the file of the District! Munsif Court Repalle and obtained a decree on 25-11-1949. He brought the properties to sale in E. P. No. 74 of 1950. One Paleti Raghaviah and Koteswara Rao filed claim petitions under Order 21 Rule 58 of the Civil Procedure Code. Those claim petitions were dismissed on 2-9-1950. The properly brought to sale in E. P. No. 74 of 1950 was subsequently sold in court auction for Rs. 715. 00. The plaintiff who is the decreeholder pruchased the properties in auction. The decreeholder retained Rs. 380-11-0 in his hands towards the satisfaction of the decree obtained by him in S. C. 273 of 1949 and paid in court the balance of Rs. 334. 00. The defeated claimants Paleti Raghaviah and Koteswara Rao, filed original suits, 255 of 1950 and 256 of 1950. Those suits ended in favour of tile claimants. The judgments in the claim suits were pronounced on 8-11-1951. The effect of those decisions was that the second respondent, who was the sole defendant in S. C. 273 of 1949, was declared to have no saleable interest in the property brought to sale and purchased by the first respondent-decree-holder in court auction, on 2-9-1950. Meanwhile, the 1st defendant to the action in S. C. 253 it 1954, and the revision petitioner herein, brought a suit against! the second respondent, O. S. 272 of 1950 and got a sum of Rs. 334. 00 attached out of the sum deposited by the first respondent auction purchaser and withdrew the same on 19-3-1931. After the claim suits were decreed in favour of the claimants on 8-11-1951, the first respondent instituted the present suit, S. C. 253 of 1954 for the recovery of the sum of Rs. 301. 00 withdrawn by the present revision petitioner. The suit was filed on 24-8-1954. The first defendant to the suit and the petitioner herein, contended that he was not a party to the claim suits, that decrees therein were collusively obtained, that the court sale held on 2-9-1950 was valid and that it had not been set aside, and that, therefore, His present suit would not lie. Before the learned District Munsif, two points appear to have been raised: (i) that the suit was not maintainable; and (ii) that it was barred by limitation. On both these points, the learned District Munsif found against the defendants and in favour of the plaintiff, and decreed the suit in terms prayed for. Hence this Civil Revision Pelition.
( 3 ) MR. Venkatarama Sastri, the learned counsel for the petitioner has contended before me that where a court auction purchaser finds that the judgment-debtor has no saleable interest in the property which he purchased in the court auction, the only course open to him is to have the sale set aside under Order 21, Rule 91 of the Civil Procedure Code. Since that has not been done within the period of limitation prescribed under Article 166 of the 1st Schedule to the Indian Limitation Act, the Court auction purchaser cannot now seek to recover the money paid by him on the footing of the failure of consideration. According to the learned counsel, a suit for the recovery of such an amount is not maintainable. In support of his contention that the only course open to the court auction-purchaser who discovers that the judgment-debtor has no saleable interest in the property purchased, is an application under Order 21 Rule 91 of the Civil Procedure Code, Mr. Venkatarama Sastri has relied upon several decisions of the Madras High Court, such as Muthukumarasamia Pillai v. Muthusami Thevan
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