The judgment established that there is no right of suit for the recovery of purchase money paid on a Court sale in cases of partial failure of consideration, and emphasized the absence of warranty of title in a Court sale.

Alfred Henry Lionel Leach, C.J.

1. These appeals have been filed under Clause 15 of the Letters Patent from a judgment of Chandrasekhara Aiyar, J. They raise an interesting question of law, but in order to appreciate it, we must set out the facts.

2. In O.S. No. 109 of 1921, the fourth defendant obtained a money decree against defendants 1 to 3. In execution of this decree, the fourth defendant attached, as the property of the judgment-debtors, 4.0a. acres of agricultural land, and on the 14th July, 1930, the property was sold by the Court. The plaintiff bought it for the sum of Rs. 2,03,0, which was paid into Court. Defendants 5 to 9 had each obtained a money decree against defendants 1 to 3 and they applied for rateable distribution of the Rs. 2,030. In the month of September, 1931, the money was paid out rateably to them and the fourth defendant.

3. On the 13th August, 1930, the plaintiff had filed an application in the Court which had executed the decree for an order setting aside the sale on the ground that the judgment-debtors had title only to 1.02 acres. This application was dismissed by an order dated 7th July, 1931, and the sale was confirmed by art order dated 17th August, 1931. On the 7th April, 1937, the plaintiff filed the present suit to recover from defendants 4 to 9 proportionately the sum of Rs. 1,992-9-10, which represented the three acres to which the judgment-debtors had no title. It was contended by defendants 4 to 9 that the suit was not maintainable and that in any event it was barred by the law of limitation. The District Munsiff rejected these contentions and decreed the suit. On appeal the Subordinate Judge agreed, as did Chandrasekhara Aiyar, J., in second appeal. The appellants in L.P.A. No. 41 of 1944 are the fourth and seventh defendants. The appellant in L.P.A. No. 69 is the fifth defendant. The sixth and ninth defendants have been made respondents; the eighth defendant is dead. Chandrasekhara Ayyar, J., based his decision on the question of the maintainability of the suit on Mach Koundan v. Kottara Koundan: (1935)69MLJ750 which was decided by a Full Bench of this Court. The appellants say that the learned Judgehas misunderstood the effect ofthat judgment. We aggree that that is so, and we shall proceed to set out our reasons.

4. The Code of Civil Pocedure of 1895 contained no provision for the recovery of the purchase money paid on a Court sale when it turned out that the judgment debtor had no right, title or interest in the property. When that Code was replaced by the Code of 1882 the Legislature recognised the injustice of allowing the decree holder to retain the purchase consideration when it was shown that the judgment debtor had no intereest whatsoever in the property sold, and consequently provided that when it was proved that there hadd been a total sale and direct the repayment to him of the purchase money.These provisions were contained in Sections 313 and 315, and thry are embodied in Order 21 Rules 91, 92 and 93 of the present Code. Sub-rule (3) of Rule 92 contains a provision which was not found in the Code of 1882. It says, " No suit to set aside an order made under this rule shall be brought by any person against whom such order is made." Therefor, so far as the Code is concerned, therer is machinery for the recovery of the purchase money when it is proved that the judgment-debtor had no saleable interest in the property.

5. In Sundaragopalan v. Venkatavarada Iyengar (1893) 3 M.L.J. 293 : I.L.R. 17 Mad. 228, Muttuswami Ayyar, J., held that there could be no application for a refund unless it was established that the judgment debtor had no right, title or interest int he property. The implied warranty of title in respect of sales by private ncontract could not be extended to Court sales except in so far a the extension was justified by the Code of Civil Procedure. A distinction was, however, made when there had been fraud. This judgment was followed by the Calcutta High Court i