Bavdekar J. - (1.)THE respondent Co-operative Credit Society had obtained an award in 1929 for Rs. 576-13-3 against one Basawwa under the Co-operative Societies Act. THE property in suit was sold in execution of that award on 15th February 1934. It appears that prior to this sale the property in suit had already been attached by another creditor and the sale price was distributed between the respondent Cooperative Credit Society and the other creditor, but there has been a compromise subsequently between the latter and the auction purchaser of the property and we will not be concerned with him, therefore, in the present appeal. THE respondent Co-operative Credit Society refused to compromise the matter and consequently the suit has come to this Court. THE reason why the auction purchaser was required to file a suit is that on 15th February 1934, one person claiming to be the adopted son of Basawwa adopted on 29th January 1930, seed the auction purchaser after he had been put into possession of the property and dispossessed him in execution of a decree obtained in that suit. THE auction purchaser thereupon filed this suit against the original judgment-creditor the respondent Cooperative Credit Society, for refund of the purchase money on the ground that even though he purchased at the execution sale the right, title and interest of the judgment-debtor, it had subsequently turned out that Basawwa had no saleable interest in the property brought to sale. THE auction purchaser who is the appellant in the present appeal has failed so far and he has consequently filed this second appeal to this Court, contending that inasmuch as it has been found that the adopted son was entitled to the property and Basawwa had no saleable interest in the property, his suit should have been decreed. This appeal has now been referred to us because of two decisions of this Court (1) in Rustomji Ardeshir v. Vinayak Gangadhar, 35 Bom. 29 : (7 I. C. 955) and (2) in Balvant Raghunath v. Bala, 46 Bom. 833 : (A. I. R. (9) 1922 Bom. 205 ). THE former was a case under the old Code of 1882 and it was held in that case that a court purchaser who had discovered that the judgment-debtors had no saleable interest in the property sold was entitled to maintain a suit for refund of the purchase money, inasmuch as there was an implied warranty of some saleable interest in the judgment-debtor when the property was put up for sale. THE Code of Civil Procedure recognized the right of the purchaser upon some implied warranty to return of the purchase money which had been received by the judgment-creditor. THE relationship between the judgment-creditor and the court sale purchaser was, therefore, in the nature of a contract. In the latter case which was a case under the Code of 1908 an auction purchaser sued in similar circumstances for refund of the purchase money, and it was held that before a person who had purchased property at a court sale can obtain the right to ask for a refund of the purchase money, he must get the court sale set aside under the provisions of Order 21, Rule 93. THE previous case of this Court in Rustomji Ardeshir v. Vinayak Gangadhar, (35 Bom. 29 : 7 I. C. 955) was referred to but was distinguished on the ground that the case was under the old Code and the language of Order 21, Rule 93, which corresponded to Section 315 of the old Code, was different from the language of the latter. 1-a. It was because it was felt that there was some conflict between these two cases that the matter has been referred to a revision Bench of this Court, and in case of a conflict between two cases of a Division Bench of this Court it would undoubtedly be necessary, unless we are prepared to say that either the one or the other is wrong, to refer the matter to a Full Bench. But when we examine the two cases it is obvious that as a matter of fact there is no such conflict as would require that the matter should be referred to a Full Bench. THE case of Rustomji Ardeshir v. Vinayak Gangadhar (35 Bom. 29 : 7 I. C. 955) was under the old Code. THEre was besides one difference between the two cases, viz. , whereas in the case of Rustomji Ardeshir v. Vinyak Gangadhar (35 Bom. 29 : 7 I. C. 955) the auction purchaser had obtained possession of the property as a purchaser and was dispossessed, in the case of Balvant Raghunath v. Bala (46 Bom. 833: A. I. R. (9) 1922 Bom. 205) the auction purchaser had not yet succeeded in obtaining possession and came to the Court with a suit before he had obtained possession. But that obviously is not a distinction which can make a difference in the principle. Section 315 of the old Code specifically stated, however, that not only when a sale was set aside under the, provisions of the old Code but "when it is found that the judgment-debtor had no saleable interest in the property which purported to be sold and the purchaser is for that reason deprived of it, ' the purchaser would be entitled to receive back the purchase money. This was interpreted under the old Code to mean that the purchaser would have a right of suit specifically given by that section of the old Code. THE case of Balvant Raghunath v. Bala (46 Bom. 833 : A. I. R. (9) 1922 Bom. 205) distinguished the earlier case of this Court on the ground that whereas the old. Code contained these words they were deliberately dropped from the Code of 1908 which governed the case which had come before the Court in Balvant Raghunath v. Bala (46 Bom. 833 : A. I. R. (9) 1922 Bom. 205 ). For the reasons which will be mentioned below, we think that this distinction was, with respect, correctly made, and if the earlier case was properly distinguish-ed, then obviously there is no conflict between this case and the latter case.
(2.)THE result, therefore, is that the case of Balvant Raghunath v. Bala, (46 Bom. 883 : A. I. R. (9) 1922 Bom. 205) is binding upon us in this case, and in case we find ourselves unable to agree with its reasoning, the only thing which we can do is to refer the matter to a Full Bench.
It appears to us, however, with respect again, that even though other High Courts have differed from the case in Balvant Raghunath v. Bald, 46 Bom. 833 : (A. I. R. (9) 1922 Bom. 205) that there is no warranty of title in any sense at a court sale, the view which has been taken by this Court in Balvant Raghunath v. Bala, 46 Bom. 833 : (A. I. R. (9) 1922 Bom. 205) is the only possible view which could be taken under the present Code. It has got to be remembered, in the first instance, that prior to the old Code of 1882 there was no warranty of title in the case of an execution sale wherein the right title and interest of the judgment-debtor was brought to sale. This was laid down in Dorab Ally Khan v. Abdool Azeez, 5 I. A. 116 : (3 Cal. 806 P. C. ). It is true that in that case property belonging to the judgment-debtor was sold but it was not subsequently discovered that he had no saleable interest therein. It was as a matter of fact a case in which the property of a judgment-debtor who had interest in it was sold and the complaint which was made by the auction purchaser who sued to recover the purchase money was that he had been dispossessed of the property by the judgment-debtor himself on the ground that the sheriff who sold the property had actually no authority to hold a sale. Bat their Lordships of the Privy Council dealt with the question as to whether there was any warranty in court sales and they specifically answered it in the negative. They referred to the English law upon this subject and then they went on to say (p. 128) : ". . . . although when he has jurisdiction he does not in any way warrant that the judgment-debtor had a good title to it, or guarantee that the purchaser shall not be turned out of possession by some person other than the judgment-debtor. " They pointed out also at an earlier stage of the judgment (p. 126): "now it is, of course, perfectly clear that when the property has been so sold under a regular execution, and the purchaser is afterwards evicted under a title paramount to that of the judgment-debtor, he has no remedy against either the sheriff on the judgment-creditor. This, however, is because the sheriff is authorized by the writ to seize the property of the execution debtor which lies within his territorial jurisdiction, and to pass the debtor's title to it without warranting that title to be good. " It was pointed out in Balvant Raghunath v. Bala (46 Bom. 833 : A. I. R. (9) 1922 Bom. 205), that these words specifically negative a contention that apart from any statute (the reference being to the Code of Civil Procedure whether of 1882 or of 1908) there is a warranty of title in the sense that the creditor who brings the property to sale guarantees that the judgment-debtor has some interest in the property brought to sale, though he may not have exactly that interest which is mentioned in the proclamation of sale.

Mr. Gokhale who appears on behalf of the plaintiff auction purchaser has pointed out to us that even though their Lordships of the Privy Council pointed out that there was no warranty of title where the right, title and interest of the judgment-debtor was brought to sale, a distinction has been made by other High Courts between execution levied in England and execution levied in India. In the case of Mehr Chand v. Milkhi Ram, 13 Lah. 618; (A. I. R. (19) 1932 Lah. 401 F. B), for example, their Lordships of the Lahore High Court referred at page 649 to the case of Kissorimohun Roy v. Harsukh Das, 17 Cal. 436 : (17 I. A. 17 P. C.), In that case it was held that a judgment-creditor at whose instance execution was levied was liable for damages in a suit at the instance of the person whose goods were attached. Their Lordships of the Privy Council referred in their judgment to the case of Walker v. Odling, (1862) 1 H. & C. 621 and then pointed out the difference in procedure when execution is levied in India and in England (p. 443) : "in England the execution of a decree for money is entrusted to the Sheriff, an officer, who is bound to use his own discretion, and is directly responsible to those interested for the illegal seizure of goods which do not belong to the judgment-debtor. In India warrants for attachment in security are based on the ex parts application of the creditor, who is bound to specify the property which he desires to attach, and its estimated value. In the present case, by the terms of the parwana, no discretion was allowed to the officer of Court in regard to the selection of the goods which he attached : his only function was to secure under legal fence all bales of jute in the respondent's premises which were pointed out by the appellants. " Their Lordships of the Lahore High Court held consequently that the attachment was the direct act of the decree-holder and they proceeded to draw therefrom the inference that the decree-holder does represent to the Court and the auction purchaser, if not that the property which he asks the Court to attach and sell belongs to the judgment-debtor, at least that he has some saleable interest in it. Mr. Gokhale says that the observations of their Lordships of the Privy Council in Dorab Ally Khan v. Abdool Azeez, 5 I. A. 116 : (3 Cal. 806 P. C.), have reference to the position as it stood before the Code of 1882. After the Code of 1882 the right of an auction purchaser to refund of the purchase money whether by way of a suit or by way of an application in execution was recognized by the Code of 1882, and inasmuch as this right was recognized, it must be taken that the Code of Civil Procedure recognized that there was a warranty of some title in auction sales held in execution and consequently a suit will lie when there is a breach of the warranty.

(3.)NOW, that was undoudtedly the inference that was drawn by their Lordships of the Lahore High Court from the case of the Privy Council in Kissorimohun Roy v. Harsukh Das, (17 Cal. 436 : 17 I. A. 17 P. C.), and the provisions of the old as well as the new Code. Bat with respect it does not appear to us that that inference follows. It does not follow even from the wording of the old Code and certainly would not follow from the words which have been employed in the Code of 1908. It is true that Section 315 of the old Code specified that the auction-purchaser would be entitled to refund of the purchase money not only where the sale was set aside in execution but also when it was found that the judgment debtor had no saleable interest in the property which purported to be sold and the purchaser is for that reason deprived of it. But as was pointed out in Balvant Raghunath v. Bala, 46 Bom. 833 : (A. I. R. (9) 1922 Bom. 205), it was not necessary to hold under the Code of 1882 that the purchaser who was entitled to file a suit based his claim upon a supposed warranty of title recognised by the Code. Section 315 of the Case specifically stated that the auction-purchaser would be entitled to refund of the purchase money when it was found that the judgment-debtor had no saleable interest in the property which purported to be sold and the purchaser was for that reason deprived of it. These words have obviously no application to cases in which the auction purchaser comes to the Court before the confirmation of the sale and gets the sale set aside. The right, therefore, could not be the right of merely applying in execution proceedings and it was, therefore, held that a suit would lie; but a suit might lie for other reasons--other, i. e. , than a warranty of title. It was pointed out, for example, in the case of Sundara Gopalan v. Venkatavarada Ayyangar, 17 Mad. 228 : (3 M. L. J. 293) that sometimes even a private sale may be rescinded and it may be rescided even after a conveyance has been executed, e. g. , when there is a mutual mistake and it turns out that the vendor had no saleable interest in the property conveyed. The ground upon which it could be done was mentioned as the equity on which Hitchcock v. Giddings, (1817) 4 Price 135 : (18 R. L. 725) was based. It appears, therefore, that when the Legislature provided by the old Code of 1882 that the auction-purchaser was entitled to a refund of the purchase money both by an application and by a suit, they recognized not that there was a warranty of title but that there was an equity in favour of the auction-purchaser owing to which it was possible for him to obtain a refund of the purchase money when he discovered subsequent to the sale that the judgment-debtor had no saleable interest in the property. The contention that as a matter of fact there is an implied warranty in execution sales because of the provision of whether the old or the new Code, therefore, fails.
It is contended, however, that even if there is no warranty of any title in a court sale, a suit would lie upon the equitable consideration that a purchaser who has been misled because of the action of the decree-holder in bringing to sale the property in which the judgment debtor has no interest and he parts with the purchase money for purchasing the property. The argument is two-fold. In the first instance, it is said that there would be a misrepresentation and in the second case it is said that even if the judgment creditor is not guilty of any misrepresentation the sale could be rescinded by the auction purchaser on the ground of mistake. Now, the case of misrepresentation obviously fails immediately we hold that when a judgment creditor brings to sale property, he does not give any warranty that the judgment-debtor had any interest in the property. It is only if it could be said that he guarantees that there is some interest in the judgment-debtor that we could say that there is some misrepresentation when the property is brought to sale. It may undoubtedly be a case of mistake because it is obvious that when the judgment-creditor is not fraudulently or honestly misrepresenting the facts, he must be under a mistake as to the judgment-debtor having an interest in the property. But the question which arises is whether any suit would lie in these circumstances, and if a suit would lie, what would be the form of action which the suit should take.