Decided on April 18,1952



Ramaswami, J. - (1.) Two points are taken in the civil miscellaneous second appeal, viz., that the lower court should have held that the plea of the respondents was barred by the principle1 of constructive 'res judicata' and secondly, that in any event the appellant before me should be refunded the proportionate share of the purchase money (i. e., three-fourths).
(2.) In my opinion, both the points taken are bound to fail. Turning to the first point, what is the constructive 'res judicata' pleaded? The argument runs that since the petitioners in the lower court did not object at the settlement of the proclamation of sale to the sale of this property as property liable to be sold in execution of the decree against the late Viswanatha Aiyar, or advance the claim that no sale could be valldly held as far as their shares or interests (viz, three-fourths) were concerned, they are barred from agitating; the matter any further under the rule of construc-tive 'res judicata'. In advancing this argument it was overlooked that the petitioners in the lower court had not any notice by reason of any of the processual formalities laid down in the Civil Procedure Code, that this particular item of property constituting the subject matter of the dispute was being sold in execution of the decree, as entirely liable in execution of the decree against the late Viswanatha Aiyar. No draft, as painted out by the learned District Judge and Subordinate Judge, of the proposed terms was served upon the petitioners, nor did the notice contain any schedule describing the properties to be sold. Therefore, it is idle to contend that if they had any such information at their disposal, they should have put forward the objections which have been advanced now by them after being in possession of all the information. In other Words, what happened in this case was, as has been set out in -- 'Chidambaram Chetti v. Kandasami Goundan', AIR 1924 Mad 1 (F.B.) (A), viz., that these respondents were told that a certain date had been fixed for settling the terms and nothing more and therefore, it would be a very remarkable thing, if on receipt of such notice, it were to follow that if they did not attend on that occasion, they must be taken to have attended and raised the question whether or not the property was the property of the judgment debtor. So, by no stretch of imagination can it be said that these respondents are barred by the principle of constructive 'res judicata'.
(3.) In regard to the second point, both on procedure and on the state of the law, the appellant is not entitled to a refund of three-fourths of the purchase price. First of all, this is a petition by the judgment debtors under Section 47, Civil P. C. and if the appellant wants a refund of his purchase price, he must file his own separate proceedings in the shape of a suit or other proceedings to agitate the relief he wants. He cannot tack himself on to the judgment debtors in this petition and ask for a refund of the three-fourths of the purchase money which is outside the scope of this petition. Secondly, I am afraid even if he is likely to agitate for it, he is not likely to get the remedy he wants because it has always been repeatedly pointed out that in court sales there is no guarantee of title and that the buyer must beware. It follows therefore there may be "lucky" purchasers as well as "unlucky" purchasers and to which latter category the petitioner appears to belong. In -' Narasinji Vannechand Firm, Gun-tur v. Suryadevara Narasayya', AIR 1945 Mad. 363 (B), it was held by a Bench of this court that the decision of the Full Bench in -" Macha Koundan v. Kottora Koundan', AIR 1936 Madras 50 (F B) (C), recognising the right of the auction purchaser to sue for recovery of the purchase money is confined to cases where there has been a total failure of consideration, that is, where the judgment debtor's interest in the property sold turned out to be nothing and that it does not enable the auction purchaser to file a suit for recovery of the purchase money where there is only a partial failure of consideration, as where the judgment-debtor is found to be entitled only to a portion of the property sold. So, this is precisely a case of this description because it has turned out that the judgment debtor's good title is only one-fourth and that in regard to the three- fourths, the judgment debtor had no title to the property for the satisfaction of this debt.;

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