RACHAMSETTI PEDDA MALLIAH Vs. ADIGOPALA BRAHMAYYA

JUDGEMENT

(1.) This is a Civil Revision Petition under Section 25 of the Provincial Small Cause Courts Act against the decision of the learned District Munsif of Repalle in S. C. S. No. 253 of 1954. The suit was instituted by the first respondent for the recovery of a sum of Rs. 356-3-6 being the amount deposited in S. C. No. 273 of 1949 by the plaintiff under the following circumstances:

(2.) The plaintiff, 1st: respondent in the revision petition, instituted a suit against the 2nd respondent S. C. 273 of 1949. on the file of the District! Munsif Court Repalle and obtained a decree on 25-11-1949. He brought the properties to sale in E. P. No. 74 of 1950. One Paleti Raghaviah and Koteswara Rao filed claim petitions under Order 21 Rule 58 of the Civil Procedure Code. Those claim petitions were dismissed on 2-9-1950. The properly brought to sale in E. P. No. 74 of 1950 was subsequently sold in court auction for Rs. 715.00. The plaintiff who is the decreeholder pruchased the properties in auction.The decreeholder retained Rs. 380-11-0 in his hands towards the satisfaction of the decree obtained by him in S. C. 273 of 1949 and paid in court the balance of Rs. 334.00. The defeated claimants Paleti Raghaviah and Koteswara Rao, filed original suits, 255 of 1950 and 256 of 1950. Those suits ended in favour of tile claimants. The judgments in the claim suits were pronounced on 8-11-1951. The effect of those decisions was that the second respondent, who was the sole defendant in S. C. 273 of 1949, was declared to have no saleable interest in the property brought to sale and purchased by the first respondent-decree-holder in court auction, on 2-9-1950.Meanwhile, the 1st defendant to the action in S. C. 253 it 1954, and the revision petitioner herein, brought a suit against! the second respondent, O. S. 272 of 1950 & got a sum of Rs. 334.00 attached out of the sum deposited by the first respondent auction purchaser and withdrew the same on 19-3-1931. After the claim suits were decreed in favour of the claimants on 8-11-1951, the first respondent instituted the present suit, S. C. 253 of 1954 for the recovery of the sum of Rs. 301.00 withdrawn by the present revision petitioner. The suit was filed on 24-8-1954.The first defendant to the suit and the petitioner herein, contended that he was not a party to the claim suits, that decrees therein were collusively obtained, that the court sale held on 2-9-1950 was valid and that it had not been set aside, and that, therefore, His present suit would not lie. Before the learned District Munsif, two points appear to have been raised: (i) that the suit was not maintainable; and (ii) that it was barred by limitation. On both these points, the learned District Munsif found against the defendants and in favour of the plaintiff, and decreed the suit in terms prayed for. Hence this Civil Revision Pelition.

(3.) Mr. Venkatarama Sastri, the learned counsel for the petitioner has contended before me that where a court auction purchaser finds that the judgment-debtor has no saleable interest in the property which he purchased in the court auction, the only course open to him is to have the sale set aside under Order 21, Rule 91 of the Civil Procedure Code. Since that has not been done within the period of limitation prescribed under Article 166 of the 1st Schedule to the Indian Limitation Act, the Court auction purchaser cannot now seek to recover the money paid by him on the footing of the failure of consideration.According to the learned counsel, a suit for the recovery of such an amount is not maintainable. In support of his contention that the only course open to the court auction-purchaser who discovers that the judgment-debtor has no saleable interest in the property purchased, is an application under Order 21 Rule 91 of the Civil Procedure Code, Mr. Venkatarama Sastri has relied upon several decisions of the Madras High Court, such as Muthukumarasamia Pillai v. Muthusami Thevan AIR 1927 Mad 394; M. Jagannadha, Rao v. R. Basawayya AIR 1927 Mad 835; and the Full Bench decision in Veeraraghavayya v. Venkataraghava Reddi 1947-2 Mad LJ 468 at p. 472: (AIR 1948 Mad 226 at p. 229) (FB). With respect to the first of the two bench decisions of the Madras High Court, I may observe that the point that arose in those cases is entirely different from the one that falls for decision in the present case.In those two bench decisions, the question that arose for determination was whether when an auction purchaser enters full satisfaction of the decree and later finds that the judgment-debtor had no saleable interest in the property, a fresh execution petition could be filed. The learned Judge took the view that the decree having been satisfied and no application under order 21 Rule 91 of the Civil Procedure Code having been made within the period of limitation prescribed therefor a fresh application for execution could not be made.In the Full Bench case referred to supra, the question was whether in respect to a court sale of property, which is admittedly not liable to- attachment and sate, the judgment-debtor could ignore the court sale as a nullity. The learned "Judges held that it will have to be avoided in accordance with law and so long as the sale stands, it could not be ignored. I do not think that case has any direct bearing upon the present question. It is true that in all those cases there are observations to the effect that the court sale is voidable as the court sales do not carry with them any warranty of title and that when it is discovered that :the judgment-debtor had no saleable interest in the property sold the only course is an application under Order 21 Rule 91 of the Civil Procedure Code.