JUDGMENT Dar, J. - This is an appeal against a judgment and decree, dated May 23, 1939, of the District Judge of Cawnpore by which he reversed a judgment and decree, dated October 18, 1938, of the Civil Judge of Cawnpore in a suit for recovery of money. 2. On Friday, August 2, 1935, Sohan Lal and Sons, Government and Public Auctioneers, Cawnpore, sold by public auction a three storeyed pucca house with a shop (present No. 48/173) situated in Generalgunj Bazaza, Cawnpore. This sale was made under instructions from the owner of the house. The highest bid made at the sale was by Kalka Prasad Kapoor who made a bid at the sale of Rs. 6,600 for which the auction sale was concluded. One-fourth of this purchase money, a sum of Rs. 1,650, was deposited on that day by Kalka Prasad with Sohan Lal and Sons who passed a receipt in favour of Kalka Prasad Kapoor. At the time of the conclusion of the sale a title deed relating to this house was handed over by the auctioneers to the purchaser. This title deed is dated November 20, 1929, and it purports to be a sale executed by Ram Das in favour of Govind Prasad of the property which was put to auction. There was some controversy at one stage of the case whether the auctioneers who sold the house for the owner of the house acted for Govind Prasad or whether they acted for some different person, but it has now been ascertained by the two Courts below that the persons who instructed the auctioneers was Govind, Prasad and it was his right and interest in the house which were purported to be sold. 3. According to the terms of the auction sale the remaining amount of the consideration, viz three fourths of the purchase money, was to be deposited within fifteen days and within fifteen days sale was to be executed before the Registrar. Before this stage could be reached it was discovered that Govind Prasad for whom the auction sale took place had no title to convey. Before this stage could be reached it was discovered that Govind Prasad for whom the auction sale took place had no title to convey. It was found that some fifteen months before, on May 8, 1934, Govind Prasad had executed a deed of gift of the house, which was the subject of auction, in favour of his wife Gulab Devi who was dead on the date of auction, leaving minor sons and daughters This defect having been discovered in the title of the vendor, Kalka Prasad Kapoor naturally declined to proceed any further with the matter. In or about September, 1935, a fresh arrangement took place between Kalka Prasad and Govind Prasad by which Govind Prasad was to execute a sale of the house in favour of Kalka Prasad's wife Mst. Jasoda Kuar and Govind Prasad was also to execute a security bond to guaran ee that the title conveyed was effective and in this security bond, Govind Prasad purported to charge another house of his situated in Subzi-mandi, Cawnpore. Difficulties arose about this arrangement also and two documents, one sale deed and one security bond, were actually prepared upon a starmed paper, and were signed on September 21, 1935, but before they could be registered it was discovered that Govind Prasad had no title to convey with regard to the house which he purported to charge as a security. 4. Kalka Prasad, having been deceived second time, now referred to the criminal Court. In the course of proceedings before the criminal Court, an agreement took place, dated January 29, 1936, by which it was arranged that Govind Prasad would take steps to get the deed of gift in favour of his wife cancelled and would convey the property with a good title to Kalka Prasad and, in the event of his failure to convey good title Govind Prasad would pay a fixed and specified sum as liquidated damages. Some difficulty arose about this agreement also and in April, 1936, Kalka Prasad served a notice upon the auctioneers, Sohan Lal and Sons, to return the deposit of Rs 1,650 which was made with them in circumstances mentioned above. Some difficulty arose about this agreement also and in April, 1936, Kalka Prasad served a notice upon the auctioneers, Sohan Lal and Sons, to return the deposit of Rs 1,650 which was made with them in circumstances mentioned above. On April 28, 1936, the auctioneers acknowledged this notice but they declined to return the deposit on the ground that there was some adverse claim put forward against it by Govind Prasad and the auctioneer?, therefore, stated that they were unable to return the money unless Kalka Prasad could secure them against the adverse claim of Govind Prasad. 5. On April 29, 1936, Kalka Prasad and his wife Mst. Jasoda Kuar raised an action in the Court of the Civil Judge of Cawnpore for recovery of a sum of Rs. 2,591 against Govind Prasad, the owner of the house, and Sarju Prasad the proprietor of the firm of the auctioneers, and the Plaintiff's claim of Rs. 2,591 included a claim for the re urn of the deposit as also a claim for damages and for interest due upon the said deposit. The suit was contested both by Govind Prasad, the owner of the house, and by Sarju Pratad, the proprietor of the firm of auctioneers, by separate defences The main defence of Govind Prasad was that he had a good title to convey, that on January 29, 1936, a fresh agreement took place between Govind Prasad and Kalka Prasad as a result of which the previous controversy between the parties was settled and a breach of the agreement of January 29, 1936, was made by the Plaintiff and he was, therefore, not entitled to maintain any action. The defence of Sarju Prasad was that he was holding the deposit in good faith because there were rival claims about it and in any case he was entitled to be reimburse for the commission and expenses which he had incurred in making the auction sale. 6. During the pendency of the suit an application was made by Govind Prasad for administration of his estate under the Encumbered Estates Act and during the time that proceedings under the Encumbered Estates Act were pending, the trial of the case instituted by Kalka Prasad mentioned above was stayed. 6. During the pendency of the suit an application was made by Govind Prasad for administration of his estate under the Encumbered Estates Act and during the time that proceedings under the Encumbered Estates Act were pending, the trial of the case instituted by Kalka Prasad mentioned above was stayed. Kalka Prasad appeared in proceedings under the Encumbered Estates Act and got his claim registered and finally in those proceedings a decree was passed for a. sum of Rs. 1,843-12-0 in favour of Kalka Prasad against Govind Prasad. 7. After the termination of proceedings under the Encumbered Estates Act the trial in the suit which Kalka Prasad and Jasoda Kuar had instituted against Govind Prasad and Sarju Prasad was resumed The trial Court found that Govind Prasad had no title to convey and whatever breach of agreement had taken place had all been on the side of Govind Prasad and none on the side of the Plaintiff. With regard to Govind Prasad, the lower Court remarked at one place that the defendant No. 1, while in the witness box impressed me as a first class crook. 8. In the end of the judgment the lower appellate Court observed: The suit is dismissed against Defendant No. 1 bat in view of his conduct he must pay the full costs of the Plaintiffs, taking the valuation of the suit as Rs 2,091, and must bear his own costs. 9. There are other equally uncomplimentary observations with regard to him in other portions of the judgment and I have got no reason to think that they are unjustified. The trial Court further found that inasmuch as a decree had already been passed in proceedings under the Encumbered Estates Act against Govind Prasad, the claim for a further decree against Govind Prasad was not maintainable but a decree can and should be passed against Sarju Prasad, the auctioneer, for the return of the deposit which was made with him in circumstances mentioned above. Accordingly it granted to the Plaintiff No 1 a decree for a sum of Rs. 1,650 against the Defendant Sarju Prasad with pendente lite and future interest at 6 per cent, and it directed Sarju Prasad also to pay three fourths of the costs of the Plaintiffs. 10. Accordingly it granted to the Plaintiff No 1 a decree for a sum of Rs. 1,650 against the Defendant Sarju Prasad with pendente lite and future interest at 6 per cent, and it directed Sarju Prasad also to pay three fourths of the costs of the Plaintiffs. 10. The Defendant Sarju Prasad made an appeal to the District Judge of Cawnpore and the learned Judge who heard the appeal reversed the judgment of the trial Court and dismissed the claim of the Plaintiffs against Sarju Prasad with costs. The view of the learned Judge shortly stated is that Sarju Prasad, the auctioneer, was a pure and simple agent of the vendor Govind Prasad and, Govind Prasad being a disclosed principal, no action will lie against Sarju Prasad for recovery of the deposit made with him. The learned Judge has not expressly referred to any law with regard to his view but it has been contended before me, that the law governing this matter is laid down in Section 230 of the Indian Contract Act (IX of 1872) and I have no doubt some such provision was in contemplation of the learned District Judge also. 11. The Plaintiffs have made this second appeal and it is contended before me that the learned Judge has entirely misconceived the law which applies to this case. Mr. Verma's contention shortly put is that the auctioneer who sells property by public auction in the absence of any contract to the contrary, and in ordinary circumstances is nothing but a stake-holder with regard to the deposit which he receives from a purchaser and, it is the duty of the stake-holder to keep the deposit with him till the transaction goes through and if the transaction fails on account of failure of consideration or on account of some fault of the vendor and notice is served upon the auctioneer to hold up the deposit, the auctioneer is bound in law not to pay the deposit to the vendor. It is contended on the other side that an auctioneer in India is nothing but an agent, pure and simple, if the vendor and the deposit: which he receives from the purchaser is money received for the vendor and even in a case where consideration has wholly failed, the remedy of the purchaser is to sue the seller for breach of contract and for damages and no action can lie against the auctioneer either for the return of the deposit or for any other relief. In England the legal position of an auctioneer with regard to the deposit which he receives from purchaser is well settled and the law in this matter is thus stated in Halsbury's Laws of England (Hailsham Edition) Vol. 1, at page 709. Paragraph 1167. In the absence of a special agreement the auctioneer receives the property as stake holder for the vendor and the purchaser and it is his duty to hold it until the completion or rescission of the contract and to pay it to the party ultimately entitled. If the auctioneer pays the money prematurely to either vender or purchaser and it turns out that the person paid was not entitled to it, the auctioneer is liable to make good the money to the party to the contract eventually held to be entitled. Where the purchaser is entitled to the return of the deposit, the auctioneer can set up the purchaser's right to the money in answer to any claim to it made by the vendor............ Paragraph 1619. The auctioneer should be ready at any time to account for the deposit but he is not liable to pay interest on it for the period during which he rightfully holds it as stake holder nor until demand for payment has been made by some person entitled to receive it 12. In Bowstead on Agency, 9th Edition, at page 307, the law on this subject is stated as follows:-- Article 127. To repay money received for use of principal "Where money is paid to an agent for the use of his principal and the circumstances of the case are such that the person paying the money is entitled to recover it back, the agent is personally liable to repay such money in the following cases, viz. ............... To repay money received for use of principal "Where money is paid to an agent for the use of his principal and the circumstances of the case are such that the person paying the money is entitled to recover it back, the agent is personally liable to repay such money in the following cases, viz. ............... (c) Where the money is paid under a mistake of facts, or under duress, or in consequence of some fraud, or wrongful act, and repayment is demanded of the agent or notice is given to him of the intention of the payer to demand repayment, before he has in good faith paid the money over to, or otherwise dealt to his detriment with the principal in the belief that the payment was a good and valid payment........ 13. Illustration 10 to the above article is as follows: 10. The auctioneer at the sale by auction receives a deposit and pays it over to the vendor. He is personally liable to refund the amount on the default of the vendor because it was his duty to hold it as a stake holder until the completion or rescission of the contract. But he is not liable to pay interest, however long he may have held the deposit, until it has been demanded, and he has improperly refused to pay it over to the person entitled--at all events unless he is shown to have received interest on the money. 14. In Chitty's Law of Contracts (Eighteenth Edition) at page 355 the legal position of the deposit in the hand of an auctioneer is stated as follows: The auctioneer, if he receives the deposit (as he frequently does,) receives it as a stake holder for both parties to pay over to one of them according to the event, but this rule does not apply to the case of a solicitor receiving the deposit as agent for the vendor, to whom it must pay it over on demand. 15. Where a deposit is made of a portion of the purchase money in an auction sale and later on it is found that the vendor had no title to convey, a case arises in which a deposit was made on a consideration which had failed and it is settled law that in case like this an action would lie against an auctioneer for money had and received. In Halsbury's Law of England (Halisham Edition) Vol. 7, at page 282 it is stated as follow:-- But the action does not lie at the suit of a third person against an agent who has accounted to his own principal for money received by him for the principal's use from such third person before notice not to part with it, unless it was obtained by duress or by means of some other wrong on the part of the agent. 16. And again in paragraph 393 on page 282 the law is stated as follows:-- A stake holder who his received money for the express purposes of holding it until it has been ascertained who is entitled thereto is liable in this form of action if he wrongfully parts with the money, and this principle applies to the case of an auctioneer holding a deposit. 17. It is contended that an auctioneer in India is nothing but an agent pure and simple, for the seller. In the first place, this is not strictly accurate, In Anson's law of Contract, 18th Edition, page 406, the law on this part of the case is stated as follows: An auctioneer is an agent to sell property at a public auction. He is primarily an agent for the seller, but upon the property being knocked down, he becomes also the agent of the buyer, but only for the purpose of recording the bid ' at the time and as part of the transaction ' so as to provide a memorandum within the meaning of Section 40 (l) o the Law of Property Act, 1925 and of Section 4 of the Sales of Goods Act. 18. To the same effect is the law stated in Halsbury's Laws of England (Hailsham Edition), Vol. 1 page 699, but it is not necessary to go into the question as to how far the auctioneer can be regarded as an agent for the purchaser nor is it necessary to go into the other and larger question as to the circumstances in which an auctioneer is allowed to maintain actions himself personally to recover purchase money or to seek other reliefs. 19. 19. In England, since the case of Burrough v. Skinner 98 English Reports 387 was decided an auctioneer has always been regarded as a stake holder and it has never been doubted that if he has received a notice from the purchaser to return the deposit in a case where sale had gone of on account of the default of the seller, the auctioneer would be bound to return the deposit to the purchaser. Whatever difficulty has arisen in England is with regard to the liability of the auctioneer in those cases where the deposit is not with him but he had handed it over to the seller and even in those cases his position as a stake holder had always been recognised (see Edwards v. Hodding 1814 C.P. 5 Taunt. 815 and Gray v. Gutteridge 1928 K.B. 1 Man. Ry, 614-615. 20. Mr. Misri Lal Chaturvedi has strongly contended before me that the entire law governing the relation of the auctioneer with the purchaser and seller in India is codified in the Indian Contract Act and the English Law which I have quoted above and the cases decided by English Courts were not applicable to a transaction arising in this country. I find nothing in the Indian Contract Act which is in any way inconsistent with the law laid down in England with regard to auctioneers in relation to the deposit. Section 230 of the Indian Contract Act on which reliance is placed is as follows :-- In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal nor is he personally bound by them. 21. When a purchaser wants the return of the deposit made to an auctioneer on a consideration which had failed, he is not seeking to enforce any contract against the agent. In a case like this, the purchaser is not relying upon a contract at all. He is bringing an action which in English law is well known, viz, an action for money had and received. The money in this case was paid by the purchaser under a mistake of fact on a consideration which was supposed to exist, but eventually turned out to be without any substance. He is bringing an action which in English law is well known, viz, an action for money had and received. The money in this case was paid by the purchaser under a mistake of fact on a consideration which was supposed to exist, but eventually turned out to be without any substance. In my opinion in a case like this, Section 230 has got no application, and the Plaintiffs were entitled to ask for the return of the deposit which was made. with the auctioneer and there was no valid defence to the action. 22. But it is further contended that inasmuch as Kalka Prasad had obtained a decree against Govind Prasad in proceedings under the Encumbered Estates Act, such rights as Kalka Prasad had are now merged in that decree and it is no longer open to Kalka Prasad to seek a fresh decree against Sarju Prasad. The circumstances in which the decree was passed against Govind Prasad are these. During the pendency of the present action proceedings were taken by Govind Prasad under the Encumbered Estates Act. When the action was brought and was pending in the Court below the deposit was in the hands of Sarju Prasad, the auctioneer, and it was not known whether Sarju Prasad would return the deposit to the purchaser or to the" seller. After the suit was instituted the trial of the action was stayed. Under the provisions of the Encumbered Estates Act Kalka Prasad was bound to register his claim and he did so and obtained a decree. The question arises whether the mere fact that Kalka Prasad had obtained a decree against Govind Prasad prevents him from obtaining a fresh decree against Sarju Prasad with regard to the deposit. The law is well settled in England that where liability is joint and several successive actions are allowed on such liabilities. In this particular case the two liabilities of Sarju Prasad a: d Govind Prasad, though arising out of one transaction and in a way allied to each other, are joint and several. The claim against Sarju Prasad is in substance for return of deposit. The claim against Govind Prasad is n substance for damages, though it also includes the return of the earnest money. The claim against Sarju Prasad is in substance for return of deposit. The claim against Govind Prasad is n substance for damages, though it also includes the return of the earnest money. In my opinion there is no objection to the two decrees being granted subject to the condition that if any money is realised in execution of one decree, it will have to be credited in the other and Kalka Prasad will not have any right to recover the amount twice over. 23. It remains now to consider the decree which should be granted to the Plaintiff. 24. So much is clear that the Plaintiff is entitled to the return of his deposit and a decree can be passed against Sarju Prasad for that amount, but the contention of Sarju Prasad is that he has spent a sum of Rs. 50 in bringing about the auction sale, in publication of notices and in other matters and he is entitled to a sum of Rs. 330 as commission, being 5 per cent on the total value of the sale. So far as out-of-pocket expenses are concerned, these may be allowed to the auctioneer as this part of the claim has not been seriously contested by Mr. Verma who appears for the Plaintiff. But Mr. Verma has serious objections with regard to the other claim of Sarju Prasad, viz., lor the alleged commission of Rs 330. In Halsbury's Laws of England (Hailsham Edition) in paragraph 1171 the law in relation to auctioneer's commission and charges is stated as follows: If the auctioneer is made a Defendant to an action for specific performance of rescission, he will in general be dismissed from the action on paying the balance of the deposit in Court after deducting his charges, but he will not be so dismissed if relief be claimed against him personally on tome ground other than the mere fact that he holds the deposit on the ground of his misconduct at the auction. 25. 25. With regard to the remuneration which an auctioneer is entitled to recover on an auction sale, it is stated as follows in paragraph 1180 at page 713 of the Laws of England (Hailsham Edition): The remuneration payable to an auctioneer by a private vendor may be fixed by express agreement as to both its amount and the events in which it is to be paid In the absence of express agreement, the remuneration is determined by custom or failing custom applicable to the particular circumstances, the auctioneer will be entitled to a fair and reasonable amount. In most circumstances where the services of the auctioneer have been fully performed, a customary rate of payment calculated by percentage will be adopted as the measure of such amount. The auctioneer may be entitled to commission on a sale to a purchase introduced by the auctioneer even where no sale by auction has been actually affected. ......... The right to claim commission may be lost by the auctioneer's negligence or misconduct. 26. In this case before me Sarju Prasad, the auctioneer has not conducted himself as a stake holder. Up to this moment he has not returned the deposit which he received from the purchaser and it is still in his hands. In the trial Court he contested the claim of the purchaser on various grounds and when the judgment went against him, the auctioneer made an appeal to the District Judge and got the Plaintiff's claim dismissed with costs. It is true that in this second appeal before me Mr. Seth who appeared for him has taken a more reasonable attitude and Mr. Seth has left the controversy between the purchaser and the seller to be decided by me and to abide by any decision which I might give. But having regard to the conduct of the auctioneer throughout the proceedings this is not a case in which he can be safely dismissed out of the action and this is certainly not a case in which he is entitled to his costs. 27. The other question whether he is entitled to anything for his commission raises somewhat different considerations. But having regard to the conduct of the auctioneer throughout the proceedings this is not a case in which he can be safely dismissed out of the action and this is certainly not a case in which he is entitled to his costs. 27. The other question whether he is entitled to anything for his commission raises somewhat different considerations. Primarily the right to commission arises under a contract between the auctioneer and the seller and the primary liability to pay this amount is on the seller and even if the auctioneer has a lien on the deposit with regard to his commission, the lien ordinarily is enforcible against a deposit when the deposit becomes the property of the seller. In certain circumstances on equitable considerations it may be possible to allow an auctioneer to recover his commissior from the deposit even against the purchaser but this is not a case in which such equitable consideration apply. The finding of the trial Court is that although the charge of fraud against the auctioneer broke down the conduct of the auctioneer was open to a certain ancount of suspicion. I am, therefore, of the opinion that it would be sufficient in the ends of justice if the auctioneer is allowed to recover out of the deposit a sum of Rs. 50 which he has spent in publication of notices and bringing about the sale for his out of pocket expenses and he must return the remaining sum of Rs. 1,600 back to the Plaintiff. 28. In the course of arguments in this appeal Mr. Seth rated that Govind Prasad has instituted a suit against the auctioneer Sarju Prasad in the Court at Cawnpore for recovery of this deposit of Rs. 1,650. I do not know whether this is a matter which could be taken into account in the present litigation. But, any way, as Kalka Prasad and Sarju Prasad and Govind Prasad are all parties to this appeal, any decision arrived at here between the parties will be binding in the future litigation. 29. I allow the appeal, set aside the decree of the Courts below and grant to the Plaintiff No 1 a decree for Rs. But, any way, as Kalka Prasad and Sarju Prasad and Govind Prasad are all parties to this appeal, any decision arrived at here between the parties will be binding in the future litigation. 29. I allow the appeal, set aside the decree of the Courts below and grant to the Plaintiff No 1 a decree for Rs. 1,600 with pendente lite and future interest at 6 per cent, per annum against Defendant No. 2, but subject to the condition that the Plaintiff No. 1 shall not recover the said sum of Rs. 1,6 0 twice over in execution of this decree and in the decree which the Plaintiff No. 1 has obtained against Govind Prasad Defendant No 1, in proceedings under the Encumbered Estates Act. And if this sum of Rs. 1,600 or any portion of it is realized in execution of this decree, credit will have to be given for it in the other decree and vice versa. And further subject to the condition that if the Plaintiff No. 1 recovers the said sum of Rs. 1,600 or any portion of it from Defendant No. 1, then the Defendant No. 1 will be entitled to recover the said sum so realized from Defendant No. 2. The Defendants shall bear their own costs throughout and Defendant No. 1 shall pay the entire costs of the Plaintiff in all the Courts. These costs the Plaintiff No. 1 shall be entitled to include at his option in his decree in proceedings under Encumbered Estates Act in this way that the credit of Rs. 1,600 if realised from Defendant No. 2 in satisfaction of this decree, shall be given in decree under Encumbered Estates Act after deducting the amount of costs of the Plaintiff awarded by this decree. 30. Leave to appeal in Letters Patent is refused.