JUDGMENT 1. This is an appeal against an order refusing an application under Or. 21, r. 91, of the Code of Civil Procedure, made by an auction-purchaser to set aside a sale of immoveable property. It appears that 1 anna 16 krants share of a certain property was sold in execution of a decree on the 21st June 1910, and was purchased by the Appellant for Rs. 3,000; 1 anna, out of the 1 anna 16 krants share, however, had already been sold in execution, of a prior mortgage decree and purchased by one Gya Prosad for Rs. 4,000 on the 23rd September 1908. So that the judgment-debtors had no saleable interest in the 1 anna share, and only 16 krants share was saleable; in other words, the judgment-debtors had no saleable interest in 14/15ths of the property which purported to be sold. Under these circumstances, the Appellant applied to the Court under Or. 21, r. 91, of the Civil Procedure Code, to set aside the sale, on the ground that the judgment-debtors had no saleable interest in the property sold. The Court below held that there was no total failure of consideration of the purchase, as the judgment-debtors had saleable interest in the 16 krants share of the property which could be sold and, accordingly dismissed the application. 2. It has been contended on behalf of the Appellant that the share in which the judgment-debtors had a saleable interest, namely, 16 krants, in such a small fraction of the property which was put up for sale and purchased by the Appellant, that it does not prevent the application of the rule contained in Or. 21, r. 91, C.P.C., and that it may be said to be a case in which the judgment-debtors had no saleable interest in the property sold. But the judgment-debtors had some saleable interest though very small (namely 1/15th), and, therefore, it cannot be said that they had no saleable interest in the property sold. 3. In the case of Naharmul Marwari v. Sadut Ali 8 C.L.R. 468 (1881), upon which reliance was placed on behalf of the Appellant, the Appellant purchased three bighas of land on the 21st February 1880, at a sale in execution of a rent-decree. 3. In the case of Naharmul Marwari v. Sadut Ali 8 C.L.R. 468 (1881), upon which reliance was placed on behalf of the Appellant, the Appellant purchased three bighas of land on the 21st February 1880, at a sale in execution of a rent-decree. At the time of that sale, a decree had been obtained (in 1879) on a mortgage of the same property by another person, by which that property was ordered to be, and was subsequently, sold on the 11th March 1880 and under which sale the purchaser obtained possession. The Appellant who had purchased on the 21st February 1880, applied to set aside the sale upon the ground that the judgment-debtor had no saleable interest in the three bighas and it was held that "if the three bighas of land were included in the mortgage and the decree was a mortgage decree, directing a sale of the mortgage property, then it is clear that on the 7th October 1879, when that decree was made, being previous to the attachment under the rent-decree the mortgagor would no longer have a saleable interest in the property in specie, because the mortgage-decree binding the land, the sale of 21st February 1880, by the Howrah Court would not carry the property itself but could only carry a light in the surplus proceeds of sale under the mortgage-decree." That case was considered in three; cases Protap Chandra Chackrabartty v. Panioty ILR 9 Cal. 506 (1883), Ram Coomar Dey v. Shushee Bhooshan Ghose ILR 9 Cal. 626 (1883) and Durga Sundari v. Govinda Chandra ILR 10 Cal. 368 (1883). 4. In the first case Mr. Justice Wilson in delivering the judgment of the Court, said that they were not prepared to lay down broadly the proposition that wherever there is a mortgage on the property and a mortgage-decree has been obtained there is no saleable interest in the judgment-debtor; and, referring to the case of Naharmul Marwari 8 C.L.R. 468 (1881) observed "We do not understand that the Court intended to lay down any such proposition. That case was a peculiar one in its circumstances and the order made was a very special one. The Court did not set aside the sale as between the purchaser and the decree-holder. That case was a peculiar one in its circumstances and the order made was a very special one. The Court did not set aside the sale as between the purchaser and the decree-holder. It set aside the sale so far as to protect the purchaser, who by reason of the mortgage, had perhaps obtained no profitable interest in the property, from having to pay the balance of his purchase money, after satisfying the decree-holder's claim, into the pocket of the judgment-debtor himself." 5. In the second case, where the sale professed to be of 16 annas, and the judgment-debtor really owned an 8 annas share, of the property sold, the Court (Cunningham and Maclean, JJ.); held that as the judgment-debtor had a saleable interest to the extent of 8 annas, it could not be held that the case fell within the scope of sec. 313. The learned Judges were of opinion that Naharmul's case 8 C.L.R. 468 (1881) was not binding because in that case the Court considered that a state of things had come about in which the judgment-debtor had no saleable interest. 6. In the third case, where a sale was sought to be set aside by the purchaser on the ground that there had been a fraudulent misrepresentation in the sale notification, and that consequently he had bought a property very different in its nature and value from that which purported to be sold, it was held that any representation or concealment in the sale notification, which induces a purchaser to buy a property for very 'much more than it is really worth (although that misrepresentation or concealment may be fraudulent) would be no ground for setting aside the sale under sec. 313 of the Civil Procedure Code. Sir Richard Garth, C.J., referring to the case of Naharmul 8 C.L.R. 468 (1881) observed -- "Whether the learned Judge was right in that case in saying that the mortgagor had no saleable interest in the three bighas sold to the Appellant may, perhaps, be open to doubt, but it is clear that the principle of the Court's decision was, that if the three bighas were included in the mortgage, the mortgagor had no saleable interest in them at the time of the sale to the Appellant." The judgment-debtor had the equity of redemption still left in him which was a saleable interest. But having regard to the principle of the Court's decision in that case, as explained in the three subsequent cases cited above, we do not think, we can hold that the present case falls within Or. 21, r. 91 of the Code. 7. In Durga Sundari v. Govinda Chandra ILR 10 Cal. 368 (1883), Garth, C.J., held that the Court can set aside the sale under sec. 313, where the property sold turns out to have no existence at all or to be of no saleable value whatever. 8. In the case of Sonaram Das v. Mohiram Das ILR 28 Cal. 235 (1900) where the property sold was 4 cottas and 1 lessa, whereas only 131/2 lessas belonged to the judgment-debtor and a suit was brought by the purchaser for re covery of the amount proportionate to the extent of consideration which had failed, the learned Judges held that the rulings, so far as they go, point to the conclusion that when there is a total failure of consideration, and the judgment-debtor has no saleable interest whatever in the property, the sale can be set aside and the purchaser can get a refund of his purchase money. But when the judgment-debtor has a saleable interest, however small, the purchaser purchases at his own risk and there is no warranty that the property will answer to the description given of it. A similar view has been taken in Sant Lal v. Ramji Das ILR All. 167 (1886), where it was held that the fact that property sold in execution of a decree is encumbered, even when the incumbrance covers the probable value of the property, is not sufficient to sustain a plea that the person whose property is sold had no saleable interest therein, and that sec. 313 of the CPC contemplates that either the judgment-debtor had no interest at all or, that the interest was not one which he could sell. 9. It seems to us that once it is held that the judgment-debtor has no saleable interest within the meaning of Or. 21, r. 91 when he has a very small interest in the property sold, it would be very difficult to draw the line in such cases. Of course in a case of fraud the purchaser is not without a remedy. As pointed out by the Judicial. 21, r. 91 when he has a very small interest in the property sold, it would be very difficult to draw the line in such cases. Of course in a case of fraud the purchaser is not without a remedy. As pointed out by the Judicial. Committee in Birj Mohan Thakur v. Rai Umanath Chaudhuri L.R. 19 Ind Ap 154 : s.c. ILR 20 Cal 8 (1893), "not having a remedy under the Code which provides only for the particular cases named therein, he still has a right to have the sale set aside, if it be true that he has been induced by fraud to pay a larger sum for the property purchased, than he would have had to pay if he had not been so do ceived." In the present case, the decree-holders were perfectly aware that the judgment-debtor had no interest in the one anna share which was held in execution of a prior mortgage decree, to which the decree-holders themselves were parties, and it seems to us therefore that the Appellant is not without a remedy. 10. Having regard to the clear terms of Or. 21, r. 91 and the authorities cited above in which Naharmul's case 8 C.L.R. 468 (1881) was considered we are unable to give any relief to the Appellant in the present case. The appeal, accordingly fails and is dismissed.