JAGAT NARAYAN J.—This purports to be a second appeal by one Thakarlal, an auction purchaser who purchased some immovable property at an auction sale held on 30.4.48 for Rs. 8300/-. The sale took place in execution of the decree of Smt. Rama respondent No.1 against Smt. Gulab respondent No. 4. Ram Chandra respondent No. 2 and Gulabchand respondent No. 3 also held decrees against Smt. Gulab and the assets received as a result of the sale of the above property were ratcably distributed amongst Smt. Rama, Ram Chander and Gulab Chand. Thakarlal auction purchaser was put in possession of the immovable property shortly after the confirmation of the sale which took place on 10.7.48.

2. During the pendency of the proceedings in execution of the decrees of Smt. Rama, Ramchander and Gulab Chand Ladulal instituted a suit for possession over the immovable property which was attached in execution of Smt. Ramas decree in 1945. In this suit he claimed that he was the adopted son of Smt. Gulabs deceased husband Kesharlal. Smt. Rama, Ram Chander and Gulab Chand were impleaded as defendants in the suit. This suit was pending when the present auction sale took place. After it was confirmed Thakarlal auction purchaser was also impleaded as a party to the suit. The suit was decreed by the trial court on 6.1.49. The appeal preferred against the decree by the defendants was dismissed on 8.1.51. On 1.4.51 Ladukl was put in possession of the immovable property, sold in execution of the decree against Smt. Gulab and Thakarlal was thereby dispossessed. He then filed the present application on the 23.4.51 to the executing court under secs. 47, 144 and 151 C.P.C. against the three decree-holders praying that they may be ordered to refund the purchase money to him. The sole ground on which the application was based was that is was discovered after the confirmation of the sale that the judgment-debtor had no saleable intere;t in the property. The executing court dismissed it holding that there was no warranty of title at a court sale and that after the sale was confirmed the auction purchaser had no right to get the refund of the purchase money. Against this order Thakarlal preferred an appeal to the District Judge who confirmed the decision of the executing court.

3. The main question which arises for determination in this case is whether the auction purchaser is entitled to recover back the purchase money from the decree-holder after the confirmation of sale if it is discovered that the judgment-debtor has no saleable interest in the property merely on the ground of such discovery.

4. On this question there is a divergence of judicial opinion amongst the High Courts in India. The High Courts of Calcutta, Bombay, Allahabad and Patna are of the view that he is not entitled to do so. The Madras High Court and the Punjab High Court have taken a contrary view. The former Chief Court of Oudh had taken a similar view. The following are the leading cases on the point—Raja Risheecase Vs. Manik Molla (1) AIR 1926 Cal., 971(D.B.), Santimnappa Vs. Balbhim Co-op, Credit Society(2) AIR 1950 Bombay 313(D.B.) Amar Nath Vs. Firm Chotelal(3) AIR 1938 Allahabad 593(F.B.), Kameshwar Singh Vs. Bansidhar Marwari (4) AIR 1937 Patna 532(D. B.), Macha Koundan Vs. Kottora Koundan (5) AIR 1936 Madras, 50(F.B.), Mehr Chand Vs. Milkhi Ram(6) AIR 1932 Lahore 401(F.B.), Bahadur Singh vs. Ram Phal(7) AIR 1930 Oudh I48(F.B.). I am in respectful agreement with the former view and fully subscribe to the reasoning given in the Bombay and Allahabad cases cited above. In these two cases the reasons which appealed to the learned Judges who decided the Madras and Lahore Full Bench cases referred to above have been considered in detail.

5. The decision turns on the question whether there is any implied warranty of title at a court sale. In England under the Common law there was no warranty of title even at a private sale. The law in India was the same before the enactment of the Transfer of Property

Click Here to Read the rest of this document