JUDGMENT
Jwala Prasad, Acting C.J.
1. This is an appeal by the defendant No. 1 against a decision of the District Judge of Purnea, dated the 7th January 1920, whereby he dismissed the appeal of the appellant and confirmed the decree passed by the Subordinate Judge of Purnea in favour of the plaintiff.
2. The plaintiff had purchased the patni in question, which was put up to sale by the proprietor under the patni Sale Law, Regulation VIII of 1819, on the 14th May. 1912 for Rs. 2,26,000. The purchase-money was deposited in the Collectorate on the 13th June 1912. Defendant No. 2, the patnidar, instituted a suit under Section 14, Clause 2 of the Patni Sale Law, to set aside the sale, impleading the plaintiff purchaser and the landlord as defendants in the suit. The suit terminated in a decree passed on compromise, whereby the sale was set aside on the 17th September 1913, Four months prior to this on the 15th May 1913, the appellant, defendant No. 1, withdrew Rs. 1,795-7-6 of the purchase-money deposited in the Collectorate by the plaintiff. The defendant No. 1 had a money-decree against one Chaturput Singh, who had held a decree against the patnidar. In execution of his decree defendant No. 1 attached the decree of Chaturput Singh and executed the same. He attached the said sum of Rs. 1,795-7-6 out of the purchase-money deposited by the plaintiff in the Collectorate and ultimately, as observed above, the said sum was withdrawn by him on the 15th May 1913. After the patni sale was set aside, the plaintiff withdrew from the Collectorate the purchase money of Rs. 1,26,000, minus the said sum of Rs. 1,795-7-6, which had been withdrawn by the defendant No. 1, The plaintiff now brings the present suit for realisation from the defendant No. 1 of the said sum of Rs. 1,795-7-6 with damages at the rate of one rupee per cent. per mensem. The plaintiff subsequently joined defendants Nos. 2 and 3, who are the holders of the patni, as defendants in this suit. The Courts below have decreed the plaintiff’s claim against defendant No. 1.
3. In second appeal he has raised the same contentions as he did in the Court below firstly, it is said that inasmuch as the appellant withdrew the sum of money claimed in the present suit in execution of his decree against the patnidar four months before the sale was set aside by means of the compromise decree, dated the 17th September 1913, and at that time the money in deposit in the Collectorate belonged to the patnidar, defendant second party, the appellant could not be made liable for the said sum. Secondly, it is said that in any case the deficiency in the purchase-money should have been made good by the proprietor of the patni at whose instance the sale had taken place and not by the defendant No. 1. Lastly, it is contended that the plaintiff must proceed against Chaturput Singh, who was directly benefited by the sum as it went to satisfy the decree as against him. The Court below held that inasmuch as the suit was Sled in June 1912 and remained pending in Court till it was compromised in September 1913, and the money was drawn by the appellant in the meantime on the 13th April 1913, he must be presumed to have known of the suit and consequently he withdrew the money with notice of the claim of the patnidar to have the sale set aside and that sale having been set aside, he must refund the money. As to the second and third contentions the Court below held that Chaturput Singh could not in any case be liable to recoup the plaintiff with respect to the land sold by him and as the appellant took away the money, he must be held to be liable to the plaintiff.
4. The ground taken by the Court below for overruling the first contention probably rests upon the principle of lis pendens. It is true that under the present law embodied in Section 52 of the Transfer of Property Act, which virtually agrees with the later views in England, no notice is necessary in order to apply the principle of lis pendens. But the principle of lis pendens applies to immoveable property [Wigram, v. Buckley (1894) 3 Ch. 483 : 63 L.J. Ch. 639 : 71 L.T. 287 : 7 R. 469 : 43 W.R. 147] and it is more than doubtfull whether it can be extended to moveable property such as in the present case, for the obvious reason that a person dealing with an immoveable property is expected to apprise himself of all the circumstances connected with it notably pending litigation in respect of the right to the property. We are, however, dealing in the present case with moveable property in the shape of money deposited in the Collectorate as the purchase money of the patni, which was sold for arrears of rent due, from the patnidar under Regulation VIII of 1819. The sale was held under Section 14 of the Regulation, which has to be made “without reserve” on the date fixed for the sale of the tenure and is not to be postponed on any account unless the amount be lodged. The only way in which this pre emptory sale can be contested is, as laid down in that section, by instituting a suit against the Zemindar for the reversal of the sale. The plaintiff in such a suit upon establishing a sufficient plea is entitled to obtain a decree with full costs and damages. Then follows the most important clause in the section which runs as follows:
The purchaser shall be made a party in such suits, and, upon decree passing for reversal of the sale, the Court shall be careful to indemnify him against all loss, at the charge of the Zemindar or person at whose suit the sale may have been made.
5. In the suit brought by the patnidar to set aside the sale the purchaser, who is plaintiff in the present case, was made a party but the compromise decree of the 17th September 1913 (Exhibit 2) does not deal with the indemnity to which the purchaser was. entitled. Now such a direction should in terms of the section have been made. In the case of Shaikh Abdoollah v. Comed Ali 6 W.R. 321 it was held that the purchaser was not entitled to be indemnified for his loss by the patnidar when the sale is set aside on proof of its having been held without due service of the notice required by law. We do not know in the present case whether the sale was vitiated on account of noncompliance with the provisions of Sections 9 and 10 of the Regulation or on account of the required notice of the sale not having been served. It was set aside in the present case by means of a compromise which had been arrived at between the parties and which was incorporated in the decree, but the compromise set forth in the decree is silent as to the ground upon which the sale was agreed to be set aside. In any case the patnidar is not liable for the loss sustained by the purchaser on account of the sale having been set aside. As regards the purchaser’s right to be thus indemnified by the Zemindar the compromise decree is silent. The omission to make the necessary direction in the decree, providing for the indemnity of the purchaser, was the ground upon which the decree in the case referred to above was set aside and the case was remanded to enable the Court to pass the necessary orders in favour of the purchaser to recover his loss against the Zemindar.
6. In the case of Mobaruck Ali v. Ameer Ali 21 W.R. 252 the Munsif who tried the case omitted to make the necessary direction in the decree under the afore said clause in Section 14 in favour of the purchaser as against the Zemindar. The contention that the purchaser should have applied to the Munsif to have his order reviewed was overruled and necessary orders were added to the decree in the High Court, The Court observed as follows:–”That remedy is now shut out, as no review can be entertained after a special appeal has been preferred, and, therefore, if we decline to interfere, the purchaser will be obliged to bring a regular suit. Under Section 14, Regulation VIII of 181 Clause 1, it is provided that, in cases like the present, the Court making a decree setting aside the sale shall be empowered to indemnify the purchaser against all loss at the charge of the Zemindar or person at whose suit the sale may have been made; and we think that the purchaser, special appellant in Appeal No. 318, is entitled to receive back from the Zemindar, who brought the patni improperly to sale, the amount of the purchase money with interest at 6 per cent. per annum from the date of the sale up to date of re-payment.” This recognises the right of the purchaser to bring a regular suit, in case there happens to be an omission in the decree for the refund of the purchase-money. There was such an omission in the present case in the compromise decree dated the 17th September 1913, setting aside the sale. There was no review or appeal from that decree and the only course now left to the purchaser was to bring the present suit. In the case referred to above the sale was vitiated on account of some irregularity caused by the conduct of the Zemindar. We do not know whether the sale in the present case was defensive in any way and as to who was really responsible for the sale, the patnidar or the Zemindar. Upon the materials in the case we are not in a position to fix the liability either upon the Zemindar or upon the patnidar. The suit, therefore, has to be decided upon the right of the purchaser to receive the money from the appellant, who withdrew it from the Collectorate and who must be deemed to be liable to refund it when the sale was ultimately set aside. The purchase-money was deposited by the plaintiff with the officer conducting the sale under Section 15 of the Regulation. That section provides that after such a deposit is made, the purchaser is forthwith entitled to obtain a certificate of the sale and to procure a transfer to his name in the Cutcherry of the Zemindar of the patni by receiving the usual Amaldustauk or order for possession. The sale-proceeds in the hands of the officer conducting the sale are to be disposed of in accordance with the directions laid down in Section 17 of the Regulation. One per cent. is carried to the account of Government for the purpose of meeting the expenses of any extra establishments maintained for carrying into effect the provisions of the Regulation. The balance is next applied to make good in full to the Zemindar or other person any sum which may be due to him. The balance, if any, then left, is to be sent by the officer conducting the sale to the treasury of the Collector to be there held in deposit to answer the claims of the Talukdars of the second degree, or of others who, by assignment of the defaulter, may be at the time in possession of a valuable interest in the land composing the Taluk sold or any part of it. In the present case the suit contesting the sale was brought soon after the sale on the 13th June 1912, the period of limitation for such a suit being one year under Article 12 of the Indian Limitation Act. It appears that the purchase-money in deposit with the officer conducting the sale was not at all distributed in the manner set forth in Section 17 of the Act and before such a distribution takes place, it is impossible to foresee if anything would be available to the defaulter patni ar. As a mitter of fact after the sale was set aside, the purchaser was given a refund of the entire purchase-money minus the sum withdrawn by the defendant No. 1. This clearly shows that it was not declared under Section 17 what sum, if any, was than held by the Collector to the credit of the patnidar defaulter. It is therefore, doubtful as to whether the appellant had any right to withdraw the money in question from the Collectorate as belonging to the patnidar. No doubt he may have had a right to have the claim, if any, of the patnidar in the purchase money deposited with the Collector attached to satisfy his decree against the patnidar when the sum due to the patnidar is determined. Assuming for the sake of argument that the money in deposit belonged to the patnidar and was kept to be paid to him or to his creditors, such payment was subject to the result of the suit instituted by the patnidar to set aside the sale. The setting aside of the sale means that the patnidar should get back his property. He could not, therefore, retain the property and the prise fetched by the property at the auction sale. The refunding of the purchase-money is a necessary consequence of the setting aside of sale of the property. If the patnidar was bound to refund it, there is no reason why the defendant No. 1, who withdrew the money as belonging to the patnidar, should not be called upon to do so. In any view of the case it appears just and equitable that the defendant No. 1 who withdrew the money should not be allowed to retain it when the sale was set aside. The obligation to refund on the sale being set aside is towards the Collector, who had the money in deposit and who paid it to the defenant No. 1. During the pendency of any dispute regarding the sale held by the Collector at the instance of the Zemindar, the money is generally paid on security being taken from the person withdrawing the money for the refund of the same. Clause 8 of Section 17 provides for this. It says: “It shall be competent to any party interested in a deposit to withdraw the whole or any part thereof on substituting Government securities, bearing interest, in lieu of the money so held in deposit.” This security is certainly to enure to the benefit of the person paying the money during the pendency of any litigation, with respect to the money or to the property such as the one brought by the patnidar in the present case, to set aside the sale. The case of Behari Lal Seal v. Maharaja Dhiraj Bijoy Chand Mehtab Bahadur 10 C.W.N. ccxxxiv (234) (notes) was decided on the basis of the aforesaid principle. In that case the creditors of the defaulting patnidars, as in the present ease, withdrew a portion of the purchase money deposited with the Collector on the sale of the patni in execution of the decree of the Zemindar for arrears of rent. Before that, as in the present case, the defaulting patnidars had brought a suit for setting aside the sale and the sale was ultimately set aside. The Zemindar was obliged to refund the purchase money to the purchaser, obviously under the direction of the Court passed in the suit to set aside the sale under Section 14 of the Regulation. The Zemindar then instituted a suit to recoup himself from the creditors, who had withdrawn the money pending the suit to set aside the sale. The suit was decreed. It is well to quote the short judgment of the Court below:–“They” (that is the creditors) “took out a portion of the surplus sale proceeds at a time when there was a suit pending, in which the question of the validity of the sale was involved. They, therefore, took out the money subject to the result of that suit; and when the sale was set aside, there was an implied obligation on their part to return the money to the Court. They did not do so; and consequently the Zemindar had to repay to the auction-purchaser Rs. 15,000, the whole of which he would not have been obliged to pay, if the defendants Nos. 1 to 9 bad fulfilled the implied obligation which was upon them to return the surplus sale proceeds to the Court.” This decision definitely fixed the liability upon the creditor (in the present case the defendant No. 1) to return the money to the Court, so that the same can be refunded to the purchaser when the sale was set aside. If the Zemindar could recover from the creditor who drew the money, there is no reason why the purchaser himself could not recover the same, on the principle that it was the failure of the defendant No. 1 which prevented the plaintiff from getting back from the Collector the entire sum deposited by him. There is no substance in the contention of Mr. Sultan Ahmad that though the Zemindar could recover the money from the creditor who withdrew is from the Collectorate, the purchaser himself cannot do so. As observed above, the creditor was liable to refund the money and it was ultimately to go to the pocket of the purchaser. It is wholly immaterial whether the Zemindar, without paying in the first instance, brings a suit to recover the money or the purchaser himself institutes the suit. I, therefore, uphold the decision of the Court below and would dismiss this appeal with costs.
Ross, J.
7. I agree.