Authored By : William Comer Petheram, S.C. Ghose

William Comer Petheram, C.J.

1. This is a suit which has been brought by the plaintiffagainst the defendant to recover a sum of Rs. 2,750 and interest, and variousother sums. The lower Court has dismissed the suit altogether, and so thematter comes before us now in appeal.

2. The facts of the case are that, some time ago, thepresent defendant brought a suit against the present plaintiff and two otherpersons, to recover a certain sum of money. It is immaterial to enquire whatthat suit was about. The Court of First Instance dismissed that suit withcosts, which amounted to Rs. 300 and odd. The plaintiff in that suit appealedfrom that decision, and while the appeal was pending the defendants in thatsuit sued out execution of their decree for costs and in the executionproceedings the house, in which the then plaintiff was living, was sold andpurchased by the present plaintiff, one of the defendants in that suit, for Rs.2,750. Out of that amount the costs, on account of which the execution had beentaken out, were satisfied , and the balance, amounting to Rs. 2,429, was paidinto Court, whereupon the plaintiff (the present defendant) applied to havethat amount paid out to her, and that was accordingly done.

3. The state of things, therefore, was this; that the househad passed into the hands of the auction-purchaser, who happened to be also theexecution-creditor, the costs for which execution had been issued was satisfied,and the balance of the purchase-money, the Rs. 2,429, had passed into the handsof the plaintiff in that suit, that is, of the person whose house it was thathad been sold.

4. That being the state of things, the next thing thathappened was, that the appeal, which had been preferred by the then plaintiff,came on for hearing. The Appellate Court was of opinion that the decree underwhich the house had been sold was wrong, and that there ought to have been adecree in favour of the then plaintiff. The Judge, therefore, set aside thatdecree and decreed the plaintiffs suit, and consequently that decree beinggone, the sale was gone too, and had to be got rid of in some form or other.

5. It being borne in mind that the person who had purchasedthe house in execution was one of the defendants, and consequently a party tothe cause, an application was made by the now defendant, who was the plaintiffin that suit, under the provisions of the Code of Civil Procedure, forrestitution of her property. This application appears to have been resisted bythe auction-purchaser, to this extent, that he stated that, if the house wererestored to the plaintiff, the purchase-money should be refunded to him. It istrue that this does no4 appear directly, but the owner of the house having, inthat proceeding, objected to return the money, it may be inferred that theperson who had paid the money had made some such objection as that.

6. However that may be, the Judge before whom the mattercame, seems to have held that, as between the parties to the suit he wasentitled to order the restitution of the house because the decree had been setaside, but that he was not in a position to say that, if that were so, themoney should be paid back as well. But whether he came to that conclusion ornot, at all events he refused to make the order that the money should bereturned to the purchaser, although he ordered that the house should bere-conveyed to the plaintiff in that suit by her.

7. The state of things, therefore, now is, that the househaving been re-conveyed by the purchaser to the then plaintiff, she remains inthe position of having both the house and the money, which was paid as theconsideration for it, and of which she applied to have her share paid out ofCourt to her, and " which was so paid; and the question arises, whether,under such circumstances, the person who paid the money for the purchase of thehouse, can recover it from her, the owner of the house, as money received tohis use, the consideration for it having failed.

8. I am of opinion that he can. I think that the money wasmoney which was paid by him into Court, in consideration that this particularhouse should be conveyed to him; and I think that when the owner of the houseapplied to the Court and took the money out, she in a manner confirmed thesale; as between herself and the purchaser she made the transaction her own;and, therefore, I think, that when she put the law in motion to cancel the saleand take the house back again, she placed herself in the position of a personhaving in her possession money which belonged to another, the consideration forwhich had failed and so came within the ordinary rule of law that a personunder these circumstances can be made to refund the money to the person fairly,entitled to it.

9. I think, therefore, that notwithstanding the provisionsof the Code of Civil Procedure, which provide that all matters between partiesto the execution proceedings shall be decided in the execution department, weare entitled to do justice and say that this money must be returned to theplaintiff, and a sufficient reason to give for that is that the plaintiff, inthe character in which he appears in this suit, was not a party to theexecution proceedings. His character, with reference to this transaction, wasthat he was an auction purchaser. It is a mere accident that he was anauction-purchaser in a suit in which he was one of the parties. In this suit hemust be treated as a third person. He is, therefore, I think, entitled to maintainthis suit without reference to the provisions of Section 583 taken along withSection 244 of the Code of Civil Procedure.

10. Under these circumstances I am of opinion that thedecree of the Court below must be varied by giving the plaintiff a decree forthe sum of Rs. 2,429, with interest thereon at the rate of six per cent, perannum from the 15th March 1885 to this date. The costs will be in proportion tothe amounts decreed and disallowed respectively.

S.C. Ghose, J.

11. I agree to the decree which toy lord proposes to pass inthis case.

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Hira Lal Chatterjivs. Gourmoni Debi (26.07.1886 -CALHC)