Dorab Ally Khan vs Khajah Moheeoodden on 23 August, 1875

Calcutta High Court
Dorab Ally Khan vs Khajah Moheeoodden on 23 August, 1875
Equivalent citations: (1876) ILR 1 Cal 56
Author: R Garth
Bench: R Garth, Markby


Richard Garth, C.J.

1. The plaintiff, therefore, having had then ample warning, must now be considered as having made the allegations in his plaint as strong and precise as was consistent with truth, and we cannot make any presumption in his favour which the language of the plaint does not strictly warrant.

2. (His Lordship then stated the allegations made in the plaint and continued): The learned Judge in the Court below considered in the first place that there is nothing on the face of the plaint to show that the proceedings of the Sheriff and also of the execution-oreditor, the present defendant, were not perfectly bond fide; and in this we entirely agree. Whatever illegality or irregularity took place appears to have been the result of mistake; and there is nothing to show that any of the parties had the least notion that they were doing anything but what the law warranted.

3. It is stated, however, distinctly in the plaint, and we must assume it as established, that the Sheriff has no right to execute the writ upon property in Oudh, and we will also assume, though it is not so clearly stated in the plaint as it might be, that the result of the proceedings before the Commissioner was that the sale of the Sheriff was declared to be null and void, and that the plaintiff’s testator was thereupon removed and evicted from the property (It did not clearly appear from the plaint in what way or by whom the purchaser was evicted).

4. The question then arises, can the purchaser at a sale by the Sheriff under a writ of fi. fa., upon being evicted from the property purchased by the execution-debtor, recover the purchase-money which he has paid from the execution-creditor, if it should turn out that the Sheriff had no authority to execute the writ at the place where the property was situate?

5. We are asked by the appellant to consider and decide the case upon the assumption that the Sheriff, in seizing, selling and conveying the property, was the agent of the execution-creditor; that the execution-creditor was in fact the vendor; and as he had no right whatever to deal with or sell the property, there was a total failure of consideration, and that consequently the money paid to him for the purchase became money had and received to the use of the plaintiff’s testator.

6. The case which appeared to be most strongly relied on in support of this view was Johnson v. Johnson 3 B. & P. 162 but that case is very plainly distinguishable. There a house was sold for £300, and the purchase-money was paid; but before the conveyance was executed the purchaser was evicted for want of title in the sellers; and under those circumstances the purchaser was allowed to recover at law the £300 from the vendor as money had and received to his use. But that was upon the express ground that no conveyance had been executed; and that has always been considered the true ground upon which the case was decided.

7. But where the conveyance has been actually executed, and the purchaser is evicted by a title to which the covenants in his purchase deed do not extend, it is clear from the authorities that he cannot recover the purchase-money either at law or in equity; see Sugden’s Ven. and Pur., p. 549, 14th edition, where most of the authorities are collectad; and the case of Glare v. Lamb 10 L.E. C.P. 334 is to the same effect.

8. The principle of these cases is directly applicable to the present. The purchaser has the means of enquiring into his vendor’s title. He is bound to satisfy himself of the goodness of the title he buys, and to protect himself by proper covenants; and we know of no authority for saying that a purchaser at a Sheriff’s sale, who expressly buys only the title and interest that the Sheriff has to sell him, is in a better position than any other purchaser. If he chooses to buy imprudently, he must take the consequences of his imprudence.

9. But apart from this consideration, which of itself affords in our opinion a complete answer to the plaintiff’s claim, there are other objections which present additional difficulties in the way of the plaintiff’s succeeding in this suit.

10. In the first place, we cannot discover that there was any privity of contract between the plaintiff and defendant which would justify the former in treating the latter as the party who had sold him the property. The fact of the defendant and his attorney having directed the Sheriff to seize the property might have made the defendant answerable in tort to the judgment-debtors for the act of seizure. But it does not follow from this that the Sheriff was the defendant’s agent to sell this property, and still less the defendant’s agent for the purpose of making a contract and executing a conveyance to any person who might become the purchaser at the sale.

11. Then again there is the further difficulty, that having regard to the fact of the plaintiff’s testator’s long continuance in the possession of this property, and in receipt of the rents and profits, it is impossible that, under any circumstances, the plaintiff could sustain a claim against the defendant in the shape which this plaint assumes, viz., a claim for money had and received upon the ground that the consideration has wholly failed. The only conceivable form in which a suit could be maintained under such circumstances would be by a proceeding in the nature of a bill in equity to set aside the sale and conveyance, and praying that an account might be taken in which the receipts and profits realized by the plaintiff’s testator on the one hand would be set off against the amount of purchase-money and the outgoings of the property on the other.

12. For these reasons we consider that upon the plaintiff’s own statement he has failed to make out any ground of claim, either legal or equitable, as against the defendant.

13. The appeal must therefore be dismissed with costs on scale 2.

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