The absence of warranty in a court sale, the lack of privity of contract between the auction purchaser and the judgment-debtor, and the application of the principle of caveat emptor in court sales.

1. The plaintiffs vendor purchased certain properties in execution of a money decree against the 1st defendant and obtained a certificate of sale, Exhibit A. At the time of the attachment, a partition suit between the 1st defendant and his coparceners was pending. The decree in the partition suit allotted certain properties to the 1st defendant. On comparing the sale certificate, Exhibit A, with the list of the properties which the 1st defendant obtained under the partition decree, it is found that the sale certificate included items which did not all of them correspond to the items in the partition decree. Plaintiff obtained 2.83 cents under the sale certificate. His suit was for the allotment of this extent from the items given under the partition decree. Some of the items being common to both there will be no difficulty in decreeing them to the plaintiff. As regards those which do not correspond to the partition decree, the question is whether the plaintiff is entitled to have their equivalent from out of the properties which fell to the 1st defendants share in the partition.

2. It was first argued that whatever may be the plaintiffs rights, he is not entitled to claim that the exact extent minus the extent of the items which are common should be carved out of other items. There is much to be said for this argument, because the properties that were allotted at the partition might be more valuable than the properties purchased at the auction. The latter might be unproductive punja lands. But the point was not put in issue in the Courts below or even here specifically. The consideration of the question would necessitate the taking of evidence; we have therefore refused to hear the question argued.

3. The more important question is, has the plaintiff any right or equity against the 1st defendant to compel him to give properties in substitution of those which were purchased at the Court auction. It was contended by Mr. A.V. Viswanatha Sastri that as there is no warranty in a Court sale, as the principle of caveat emptor applied to it, and as the plaintiff has chosen to bid for and purchase specific properties, he is not entitled to claim their equivalent from other properties of his judgment-debtor. There is no direct authority on the question. Thakur Burmha v. Jiban Ram Marwari (l913) I.L.R. 41 Cal. 590 (P.C) only lays down that there is no warranty in a judicial sale.

4. Mr. T.M. Krishnaswami Aiyar drew our attention to the decision of the Judicial Committee in Byjnath Lall v. Ramoodeen Chowdry (1873) L.R. 1 I.A. 106. That was a case of a mortgage of specific properties belonging to an undivided family. The case arose before the Transfer of Property Act came into force. Their Lordships say: " It is therefore clear that the mortgagor had power to pledge his own undivided share in these villages. But it is also clear that he could not, by so doing, affect the interest of the other sharers in them, and that the persons who took the security took it subject to the right of those sharers to enforce a partition, and thereby to convert what was an undivided share of the whole into a defined portion held in severalty." This principle was apparently enunciated as arising from first principles of jurisprudence and was not based upon any statutory recognition of warranty. No doubt by the Transfer of Property Act, the Legislature has provided for a warranty in favour of the mortgagor, (Vide Section 65) but the decision above quoted was wholly independent of legislative warranties. In Manjaya v. Shanmuga (1913) I.L.R. 38 M. 684. Sankaran Nair, J., applied this principle to cases of private sales by a co-parcener of specific properties. Mr. A. V. Viswanatha Sastri contended that this decision is opposed to principle and to the judgment of Bashyam Aiyangar, J., in Ayyagiri Vencata Ramayya v. Ayyagiri Ramayya. (1902) I.L.R. 25 M. 690. In this latter case what the learned Judge decided was that where a sale is made of specific items befo