JUDGMENT
1. The point which I took time to consider was, whether an auction-purchaser having ineffectually made an application under Section 315 of the Civil Procedure Code, may afterwards bring a suit to recover the purchase-money. It appears that the application for repayment of the purchase-money made after the sale of the property was set aside was dismissed on the ground of limitation. It is said that it was wrongly dismissed, but the point is not material, because it is not suggested that the present suit is barred by the law of limitation.
2. I was inclined to think that the plaintiff having elected to proceed by application could not subsequently have recourse to a regular suit, and Stuart, C.J., in the case cited (Munna Singh v. Gajadhar Singh, I.L.R., 5 A. 582) seemed to have entertained that opinion. It certainly is not convenient that a purchaser should be at liberty to vex the judgment-creditor by adopting, first, one of the remedies, and then, the other. In a case, however, like the present in which the claim has not become res judicata in. the first proceeding, I do not see on what principle the purchaser can be prevented from instituting another proceeding. Here the application led to nothing; there was no decision of any question arising in the suit. It may have been open to question whether, since the” right to recover the purchase-money is a creature of the Code, any remedy other than that indicated in the Code was intended to be available to the purchaser.
3. It has been decided that a suit is maintainable, and this being so, I do not think the right to sue can be affected by the circumstance that a prior application has been made, unless in that application the matter has been made res judicata.
4. I think the decree of the Subordinate Judge must be reversed, and he must be directed to decide what sum is recoverable and from which of the defendants and to pass a decree accordingly.
5. I give the petitioner costs of this application. Other costs, the Subordinate Judge will deal with.
