Ayling J.

1. The facts of the case are sufficiently set forth in the judgment of the Subordinate Judge : and his decision appears to me to be correct. Two points are argued on behalf of the petitioner, (1) that the present suit is not maintainable and (2) that it is barred by Article 62 of Schedule I of the Limitation Act.

2. As regards the first point, the Court auction under which plaintiff (Respondent) purchased the property, the filing of O.S. No. 341 of 05 to declare the title of a third person other than the Judgment-debtor and the final decision of that suit, all took place, while thfe old Civil Procedure Code (Act XIV of 1882) was in force. It has been repaatedly held that under Section 315 of that Act a suit by a Court auction purchaser to recover the sale price from the decree-holder would lie where it was found on a suit brought by a third party that the judgment-debtor has no title whatever to the property sold in Court auction (vide Gurnshidawa v. Gangaya (1897) I.L.R. 22 B. 783 following Munnah Singh v. Gajadhar Singh (1883) I.L.R. 5. a. 577 Pachappan v. Narayana (1887) I.L.R. 11 M. 269 and Nilakanta v. Imam Sahib (1892) I.L.R. 16 M. 361) Plaintiffs right of suit accrued on 21st January 1907, when the decree in O.S. No. 341 of 05 was confirmed on appeal it does not appear that he ever obtained possession of the property purchased. Whether a similar right of suit exists under the present code is a point on which it is unnecessary to express an opinion, though I should be loth to hold that it did not. But I certainly do not find anything in the present code which would have the effect of taking away the right of suit which had accrued to the plaintiff before it came into force. I therefore hold the present suit to be maintainable.

3. As regards the question of limitation Nilakanta v. Imam Sahib (1892) I.L.R. 16 M. 361 is authority for holding that Article 120 applies to suits brought under Section 315 of the old Code. The petitioner relies on the cases reported in Ram Kunwar Saha v. Ram Gour Saha (1909) I.L.R. 37 C. 67, Kovvuri Hasana Reddi v. Tallapragad Nayanna (1911) I.L.R. 35 M. 39. The latter of these was a case of private sale and though the Calcutta case was one of court sale the decision followed that in an earlier case of private sale, Hanuman Kamat v. Hanuman Mandur (1891) I.L.R. 19 C. 123 and the question of whether a suit under Section 315 should be distinguished was not considered. I hold that the suit is not time barred.

4. The petition must therefore be dismissed with costs.

Napier J.

5. This is a suit to recover from the defendant money paid on the purchase at a court auction in execution proceedings of certain property. The defendant was the decree-holder in S.C. 219 of 1894. In execution of his decree he brought certain lands to sale as belonging to his judgment-debtor and the plaintiff purchased them. Subsequently a third party brought a suit to establish his title to the land making the plaintiff and the defendant in this suit parties and his title was upheld. The plaintiff then applied in execution proceedings for refund of his money, but the court held that his remedy was by a suit. He accordingly instituted S.C. 156 of 1910 against the judgment-creditor and the Subordinate Judge gave him a decree.

6. It is contended in this Court that no suit lies. It is admitted that under Section 315 of Civil Procedure Code of 1882 the purchaser would be entitled to receive back his purchase money; but it is argued that under the present Code no such right exists and his rights are governed by the Code.

7. It is necessary to examine the history of this claim. It has been laid down by the Privy Council in Dorat AH Khan v. The executors Khajhee Moheeooddeen (1878) I.L.R. 3 C. 806 that as in India moveable and immoveable property are alike capable of being seized and sold under the writ of fieri facias the responsibility of the sheriff in respect of sales here is governed by the law relating to chattels rather