JUDGMENT

Sulaiman, J. - This is a plaintiff's appeal arising out of a suit brought by an auction purchaser for recovery of the purchase money paid by him, and taken away by the decree-bolder, as well as for the surplus sale proceeds still in deposit in court, on the ground that the judgment-debtor had no saleable interest in the property sold at all. It appears that Dalpat Rai and Basant Rai, who are now represented by defendants Nos. 2 to 6, held a simple money decree against one Durga Prasad for a sum of Rs. 1,206 and odd. In execution of that decree certain property was attached as belonging to the judgment-debtor and put up for sale and purchased by the present plaintiff appellant. The appellant paid the purchase money and the sale was confirmed on the 27th of July, 1911. One Jawahir Lal brought a suit for a declaration of his own title and for setting aside the sale against the decree-holders, the judgment-debtor and the auction purchaser. This suit was decreed on the 1st of December, 1911. The decree-holders took out part of the sale proceeds deposited in court in satisfaction of their decree, leaving a sum of Rs. 617-12-8 as the surplus sale proceeds. In 1917, the present suit was filed for recovery of the purchase money on the ground that the judgment-debtor had no saleable interest in the property at all. The court of first instance decreed the suit with respect to the amount which was still in deposit in court, but dismissed it as against the decree-holders. The plaintiff appealed to the court of the District Judge and the defendants filed cross-objections. The learned Judge affirmed the decree of the court of first instance, holding that the suit was not maintainable. The defendants have submitted to the decree. The plaintiff has come up to this Court in second appeal. On his behalf it is contended that he is in equity entitled to recover the amount paid by him when he is not able to retain the property, and that legally there is no bar to such a claim.

2. As the appeal raises an important question of law, it is necessary to consider it at some length. u/s 258 of Act VIII of 1859 it was provided that "whenever a sale of immovable property is set aside, the purchaser shall be entitled to receive back his purchase money, with or without interest, in such manner as it may appear proper to the court to direct in each instance." It is clear that, although under that Code there was an express provision entitling the auction purchaser to receive back his purchase money in case the sale was set aside, there was no such provision in the case where the sale had not been set aside, even though it were found that the judgment-debtor had no saleable interest in the property at all. Again the Code did not expressly specify the manner in which the right to recover this money could be enforced. It was open to the court to direct the auction purchaser to recover his money by an application in that court or by a separate regular suits, The rulings under this Code seem to have recognized as an established principle of law that a purchaser at a sale in execution of a decree could not recover his purchase money if it turned out that the judgment-debtor had no saleable interest in the property put up for sale, and that Section 258 solely applied to those cases in which the sale had been set aside for irregularity in publishing and conducting it; vide, Sowdamini Chowdhrain v. Krishna Kishor (1869) 4 B.L.R. 11 (where the sale had taken place even prior to the Act), Hira Lal v. Karim-un-nisa I.L.R (1880) All. 780 and Ram Narain Singh v. Mahtab Bibi ILR (1880) All. 828. While, therefore, the Code of 1859 was in force, the courts did not recognize any independent rule of equity, justice or good conscience under which an auction purchaser could recover his purchase money if it turned out that the judgment-debtor had no saleable interest at all. The case of (1878) L.R. 5 I.A. 116 (Privy Council) requires special consideration, because the learned