Decided on November 30,1955

STATE Appellant


- (1.) THIS is an appeal by the 1st defendant from the judgement of the District Court of Mavelikara in O. S. No. 81 of 1952. The plaintiff was the auction-purchaser at a court sale on 31. 7. 1951 and his main prayer was:
(2.) THE lower court summarised the facts of the case as follows: "suit is for recovery of the auction amount deposited with interest on cancelling the auction. THE plaint allegations are the following: 15 cents of property in S. No. 54/5 of Tripperunthura Pakuthy was sold by the Sirkar 1st defendant for costs due to the Sirkar from the plaintiffs in O. S. 31 of 1116 of Mavelikara District Court. Sirkar was the 25th defendant in O. S. 31 of 1116. 2nd defendant is the representative of the plaintiff in O. S. 31 of 1116. 15 cents of property belonging to Sri narayanapuram Devaswom was proclaimed by the Sirkar and sold in court auction on 31. 7. 1951 as belonging to the plaintiff in O. S. 31/1116. THE said plaintiff had no right or title in the property proclaimed on the date of the sale. THE land was proclaimed for sale falsely representing that the plaintiff in O. S. 31/1116 has got right in the property proclaimed. On 31. 7. 1951 the auction was bid by the plaintiff in the instant suit and deposited 1/4th of the auction amount on the same date and the balance 3/4th on 18. 8. 1951. THE above fact was noticed by the plaintiff only after the confirmation of the sale and so on 15. 10. 1951 the plaintiff filed a petition before the execution court claiming the refund of the amount deposited when the auction was bid. THE 1st defendant sirkar was given notice of the claim made and on 1. 12. 1951 on enquiry Sirkar filed a memo admitting the facts alleged by the plaintiff and stating that the sirkar has no objection in the sale being cancelled. THE execution court dismissed the petition on the technical ground that the petition is time barred as it was filed 30 days after the date of confirmation of the sale. THE allegation of the plaintiff is that the sale was brought about due to the misrepresentation and gross negligence of the officers of the 1st defendant and that plaintiff is entitled to get the refund of the money and the interest thereof. THE necessary notice contemplated under law was issued to the State 1st defendant, but no reply as yet was received. On these allegations plaintiff has brought the suit for a decree as prayed for in the plaint. " discussed the arguments advanced and gave the plaintiff a decree in the following terms: "i. Plaintiff is allowed to recover Rs. 230 with 6 per cent interest from 31. 7. 1952 from 1st defendant with costs. Interest on costs 6%. ii. THE court sale dated 31. 7. 1951 is set aside," The 1st defendant (appellant) is the Government of travancore-Cochin. A memo was filed by the State on 1. 12. 1951 to the effect that it is willing to have the sale set aside. Para. 9 of the written statement dated 15. 12. 1952 filed on behalf of the State, however, said: "it is true that a memo was filed by this defendant in the execution court on 1. 12. 1951 but that was not acted upon. It does not give any right or cause of action to the plaintiff. " The only contention urged on behalf of the appellant is that no suit will lie in view of O. XXI, R. 93 of the Code of Civil Procedure, 1908, and the lower court should have dismissed the suit on that account. Mulla summarises the law on the subject as follows:- (Pages 918 & 919, 12th edn. ). "it has been held by all the High Courts, except the oudh Court, that under the present Code an auction-purchaser is not entitled as he was under the Code of 1882 to bring a regular suit for a return of the purchase-money in cases where the judgment-debtor has no saleable interest in the property unless he can bring himself within the equitable principles which justify a suit for money had and received to his use. " One of the cases that he cites in support of the last portion of the proposition is LIII Calcutta 758 in which page, J. , after referring to (1878) L. R. 5 I. A. 116, said: "that is the general rule, but in a case where property in which the judgment-debtor has no saleable interest has been purchased in execution of a decree, and the circumstances are such that in accordance with the equitable rules obtaining in that behalf it would be against reason and conscience that the person to whom the purchase-price has been paid should retain the purchase-money as against the auction-purchaser, the auction-purchaser is entitled to recover such money as money had and received to his use. If he did not possess such a right he might be exposed to loss resulting from fraud or collusion at the sale between and execution-creditor and the judgment-debtor, and yet remain without redress. But against loss sustained in such circumstances the law does not leave him defenceless, and the auction-purchaser may recover the purchase-price which he has paid if he can bring himself within the equitable principles which justify a suit for money had and received upon the ground that it is unconscionable that the defendant should retain the money as against the plaintiff. " After hearing counsel and perusing the evidence on record we entertain no doubt that this is a fit case in which the principle enunciated above should be applied and the suit held to be maintainable as decided by the court below. The appeal fails and is dismissed with costs.;

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