Decided on November 28,1900

MOHIRAM DASS Respondents


- (1.) This is a suit brought by the plaintiff to recover a sum of Rs. 215 which he paid for the purchase of a certain parcel of land, or, in the alternative, for the return of such portion of this sum as may be proportionate to the extent to which he alleges the consideration had failed. It appears that there was one Kali Charan Sen who obtained a decree against the father of the defendant No. 2. This decree was sold to the defendant No. 1, who applied for execution, and a certain property was sold in execution of that decree, which the plaintiff purchased for Rs. 215. The property was advertised as being 4 kattas and 1 lessa in extent, whereas in the course of a suit subsequently brought by a third person, it was established that only 13 1/2 lessas belonged to the judgment debtor and that was all that the plaintiff had purchased at the execution-sale.
(2.) The plaintiff now sues to have the sale set aside and the purchase money returned to him.
(3.) The first Court held that as there had not been a total failure of consideration, the plaintiff was not entitled to any relief, holding that there was no warranty of title, that the sale passed to the plaintiff the right, title and interest of the judgment-debtor, and that, although the right, title and interest of the judgment-debtor was less than what the plaintiff thought he was purchasing, still as the judgment-debtor had a saleable interest in the property, however small, the plaintiff could get no relief.;

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