MODI, J.—This is a special appeal by an auction purchaser against a judgment and decree of a learned single Judge of this Court dated the 25th August, 1960, and raises an interesting question of law. namely, whether an auction-purchaser is entitled to recover back the purchase money from the decree-holder after the confirmation of a sale in his favour if it is discovered in a suit brought by a third party that the judgment-debtor had no saleable interest in the property purchased by the auction-purchaser, and, therefore, he is deprived of the possession of such property.

2. The facts leading up to this appeal lie in a narrow compass. Mst. Rama respondent No. 1 obtained a money decree against Mst. Gulab. The former having died during the course of the present appeal, is now represented by Nathulal and others. The judgment-debtor Mst. Gulab also having died is represented in this appeal by respondents Nos. 5 to 7. Respondents Nos. 2 and 3 are certain other decree-holders against Mst. Gulab. Respondent No. 4 Ladulal is the alleged adopted son of Kesharlal, husband of Mst. Gulab. In execution of her decree against Mst. Gulab. Mst. Rama attached a Nohra alleging the same to belong to the latter. This property eventually came to be sold at a court sale and was knocked down in favour of the appellant auction-purchaser on the 30th April, 1948, for Rs. 8300/- Jhadshahi equivalent to Rs. 8818/12/- in Indian currency. On the auction-purchaser having deposited the purchase price, the sale was confirmed by the execution court on the 10th July, 1948, and a sale certificate was granted to him. This sale was admittedly conducted and made subject to a suit to which reference would be made presently. The sum of Rs. 8818/12/- was then ratably distributed between Mst. Rama and the other two decree-holders Ramchandra and Gulabchandra, respondents Nos. 3 to 4. But before the property was thus sold, Ladulal the alleged adopted son of Kesharlal (husband of the judgment-debtor Mst. Gulab) had instituted a suit on the 26th September, 1945, against Mst. Gulab (his adoptive mother) and the decree-holder Mst. Rama and the other two decree-holders for a declaration that he was the adopted son of Kesharilal and that the property in question was not liable to attachment and sale in execution of the decree of Mst. Rama against Mst. Gulab. After the sale had been knocked down and confirmed in favour of the appellant, he was also added as a party defendant in that suit. This suit was decreed in Ladulals favour on the 6th January, 1949, and it was held that he was the adopted son of Kesharilal and that the property in question was not liable to attachment and sale in execution of the decree of Mst. Rama against Mst. Gulab, as the latter had no right or title to it. On the same day, that is, the 6th January, 1949, the appellant applied to the executing court that the auction-money which was up to that time lying in court be not distributed among the decree-holders and that the same be refunded to him, inasmuch as the suit brought by Ladulal with respect to the property in question had been decided in his favour. This, however, proved to be of no avail, and the money realised by auction was, as already stated, ratably distributed among the various decree-holders on or about the 11th/12th January, 1949.

3. The judgment-debtor Mst. Gulab preferred an appeal against the judgment and decree of the trial court dated the 6th January, 1949, to this Court, and the same was dismissed on the 8th January, 1951. Respondent Ladulal then applied for being put in possession of the property and this was allowed to him by the executing court on the 1st April, 1951. This led to an application dated the 23rd April, 1951, by the auction-purchaser for return of the auction-money deposited by him as it had turned out that the judgment-debtor Mst. Gulab had no saleable interest in the property auctioned. The executing court rejected this application by its order dated the 9th September, 1

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