Claim made by auction purchaser if tenable.

JUDGEMENT:- The defendants are the appellants. The suit was filed by the plaintiff-respondent for the recovery of a sum of Rs. 3,339. The facts leading to the filing of the suit are as follows:-

The defendants as decree-holders brought certain properties of one Dhanalakshmi Ammal, wife of Govindachari and others, who were the judgement-debtors, to sale in E.P.172 of 1972 on the file of the learned Additional Subordinate Judge, Pondicherry. The plaintiff was the successful auction purchaser and on 1-11-1973, the date of auction, he deposited one-fourth of the sale proceeds of Rs. 35,100. He had also remitted the balance of consideration and also non-judicial stamp papers for the issue of a sale certificate. Before the sale could be confirmed, the judgementdebtors filed E.A. No.492 of 1973, under O. 21, R.90, C.P.C. to set aside the sale on the ground of material irregularities and fraud, in publishing the proclamation of sale and in the conduct of the sale. By an order dated 3-8-1974, the learned Additonal Subordinate Judge, Pondicherry, held that there was no mention of the place of auction sale in the proclamation, that though there was no encumbrance on the property, a discharged mortgage was shown as an encumbrance, that there was only one bidder, who was the plaintiff in this case and he is also a relative of the decree-holder and that the sale is vitiated by material irregularities in the proclamation of the sale and in the conduct of the sale, and in that view, the learned Subordinate Judge set aside the sale held on 1-11-1973, but on condition, that the judgement-debtor deposited an amount equal to the amount of sale proceeds in court on or before 7-8-1974. The judgement-debtor accordingly deposited the money and the sale was set aside. While refunding the sale proceeds deposited in court, a sum of Rupees 1,083, was deducted towards poundage and only the balance of Rupees 34,017 was paid back to the auction purchaser on 27-11-1974. In this suit, the plaintiff claimed that he is entitled to recover this poundage of Rupees 1,083. He has also claimed that he is entitled to interest at 6 per cent per annum on Rs. 35,100 from 1-11-1973, the date of deposit to 27-11-1974, when he was paid the sum of Rs. 34,017. This interest came to Rs. 2,256, and the interest added to the poundage came to Rs. 3,339, for which, this present suit has been filed. The plaintiff's case was that the sale was set aside due to irregularities and fraud committed by the decree-holder, that for no fault of his, he has been made to pay the poundage and also to suffer the loss by way of loss of interest and that therefore, he is entitled to recover the money claimed in the suit. The defendants contended that the sale was set aside because the proclamation was not in accordance with law and that there was also a misstatement of an encumbrance in the proclamation and that the decree-holder was responsible for all the irregularities. In fact, that was the view taken by the executing court while setting aside the sale. The courts below also held that the plaintiff is entitled to recover the poundage as also the interest and the suit is maintainable. Accordingly the suit was decreed and the appeal filed there against was also dismissed.

2. In this second appeal, the learned counsel for the appellant contended that the suit for recovery of the poundage or for recovery of any interest is not maintainable. The first ground on which the learned counsel submitted that the suit is not maintainable was that under O.21, R.93, C.P.C., only the executing court can direct refund of the money with or without interest, subject to the limitations as to the liability of the person to pay interest as provided in that rule itself. In fact, according to the learned counsel, but for the provision in R.93, a court auction purchaser would not have been entitled to get refund of even the purchase money paid by him on setting aside the sale. Rule 93 of O.21, C.P.C. reads as