A suit for refund of purchase money is not maintainable when the sale is held under Order XXI, Rule 92(3) of the Code of Civil Procedure, except in cases of fraud or misrepresentation.

( 1 ) THIS second appeal is by the plaintiff in Title Suit No. 34/1949 of the First Court of the Munsif at Howrah, against the judgment and decree passed by the learned Subordinate Judge, Second Additional Court, Howrah, dismissing the appeal preferred by him against the judgment and decree of the said learned Munsif, dismissing the above suit. The facts of this case lie within a narrow compass and may be stated as follows:

( 2 ) RESPONDENTS Nos. 12 and 13 used to hold a Jama of Rs. 20/7/- and odd under the co-sharer landlords, Respondents Nos. 1 to 11. The plaintiff-appellant auction-purchased the said holding in the sale held on 18-11-46 in Rent Execution case No. 73/1946, started by some of the co-sharer landlords, namely, Respondent No. 1 and Late Bejoy Krishna Mookerjee, predecessor of Respondents Nos. 2 to 4, in execution of the decree obtained by them on 11-6-43 in Rent Suit No. 142/1942. The said sale was confirmed on 19-12-46. But it appears that another co-sharer landlord, namely, Anath Nath Goswami, Respondent No. 5, had previously instituted a Rent Suit (No. 453/1940) and in execution of the decree obtained therein on 20-1-41, himself auction-purchased the holding on 20-6-44 and the said sale was confirmed on 26-8-44. On coming to learn of the previous auction-purchase of the holding by the said co-sharer landlord, Anath Nath Goswami, the plaintiff, applied under Order XXI, Rule 91 of the C. P. C. for having set aside the said sale, on the ground that the said judgment-debtors, namely, Respondents Nos. 12 and 13, had no saleable interest in the property at the date of his auction-purchase. On 16-7-47 a Miscellaneous proceeding, being Misc. Case No. 154/1947, was started on the basis of the said application and the said case was eventually dismissed on 17-6-48 on the ground of limitation.

( 3 ) BEING baffled thereby, the plaintiff instituted the instant suit (T. S. 34/1949) for getting a declaration that the sale held in Rent Execution Case No. 73/1946 was null and void as the judgment-debtors in the said proceeding had no saleable interest in the property on the date of the auction-sale, and that this fact was fraudulently suppressed by the decree-holders, namely, Respondent No. I and the predecessor of Respondents Nos. 2 to 4, and for refund of the purchase money deposited by the plaintiff in the above execution case.

( 4 ) THE suit was contested by the defendants, Respondents Nos. 1 to 4. Their defence, in substance, was that the suit was barred under Order XXI, Rule 92 (3) of the Code of Civil Procedure and it was denied that any fraud was practised by the contesting defendants on the plaintiff in relation to the holding of the said sale.

( 5 ) ADMITTEDLY, the rest of the co-sharers were not impleaded in either of the two Rent suits mentioned above and the learned Munsif dismissed the suit remarking that though the extent of the share of the decree-holders in the suit property and the amount of the Jama were not correctly stated in the sale proclamation issued and served in the Rent Execution Case No. 73/46, these two material omissions in the sale proclamation might have been due to bona fide mistakes on the part of the decree-holders and that there was nothing to show that the decree-holders had any fraudulent intention or that these omissions were deliberately done in order to defraud the public including the present plaintiff. On appeal, the learned lower appellate court affirmed the decree of dismissal passed by the learned Munsif. The learned Subordinate Judge held that the plain-tiff had totally failed to prove a case of fraud or misrepresentation and therefore, the suit was not maintainable. The learned Subordinate Judge was further of the opinion that the suit for refund of the purchase money was also not maintainable on equitable grounds.

( 6 ) AT the time of hearing of this appeal it was conceded by the learned Advocate appearing for the appellant that the suit for setting aside the sa