Patna High Court
Khetro Mohan Datt vs Sheikh Dilwar And Ors. on 20 June, 1918
Equivalent citations: 46IND. CAS.614, AIR 1918 PATNA 636
JUDGMENT Mullick, J.
1. This is a matter which arises out of an execution sale held in enforcement of a decree for money. The right, title and interest of the judgment-debtor in certain immoveable property was sold on the 28th March 1916 and purchased by a person who says he is in no way connected with the judgment-debtor.
2. On the 27th March, a mortgagee of the property came in and asked the Court to sell the property subject to his mortgage, although that mortgage did not find any mention in the sale proclamation.
3. It seems that when the parties were called upon to settle the sale proclamation the judgment-debtor did not appear and so the Court had no opportunity of notifying the mortgage charge in the sale proclamation. After the sale was held and confirmed, the auction-purchaser appeared before the execution Court and demanded that the sale should be set aside on the ground that he had purchased in ignorance of the fact of the mortgage charge. He contended that as the mortgage charge had not been notified in the sale-proclamation he was not bound by his purchase and that the sale should be rescinded. The Munsif very properly held that the auction-purchaser was not a person who could come in and attack his own purchase. He also seems to be of opinion that the auction-purchaser had sufficient opportunity of knowing that the property was sold subject to the mortgage charge.
4. The auction-purchaser then appealed to the District Judge and he without deciding the question as to whether the auction-purchaser had any locus standi in the matter said that it was a fit case for the exercise of his inherent powers and that as there was no provision of the Code under which he could set aside the sale, he would do so on the ground that the omission to notify the incumbrance at the time of the sale operated harshly upon the auction-purchaser.
5. Now in my opinion it is quite clear that the learned Munsif took the correct view that it is not open to a party who purchases at an auction-sale to impugn the validity of his own purchase when he finds that he has bought a property which is not worth as much as he expected at the time of his purchase. Every man buys at an auction sale with his eyes open and the general principle that an auction-purchaser cannot attack his own purchase except on the ground that the judgment-debtor had no saleable interest must apply. Nor is this a case in which the inherent powers of the Court can be exercised, as the auction-purchaser has his proper remedy against the decree-holder. If he has bought a property the title as to which was defective, and if he has been misled on account of any fraud or omission on the part of the decree-holder, it will be open to him to seek his remedy against the decree-holder by a suit for such damages as the law allows. But there is no reason why the Court should interfere on behalf of the auction-purchaser and set aside a sale simply because the auction-purchaser has bought a bad title.
6. The result is that the order of the learned District Judge is set aside. We make this order not in appeal but in the exercise of our revisional powers, because it seems to us that no second appeal lies to this Court as no first appeal lay to the District Judge. We treat the memorandum of appeal as an application for revision and make the order under Section 115 of the Code of Civil Procedure. The petitioner before us will get his costs. Hearing-fee one gold mohur, Thornhill, J.
7. I agree.