JUDGEMENT :- A very interesting and rather important question of law arises in this Second Appeal. The question relates to the right of an auction purchaser in a Court sale, who has purchased property but has found to his surprise that the judgment- debtor had no saleable interest in the property that he (auction-purchaser) purchased. The question is, whether he can proceed against the decree-holder and/or judgment-debtor for the recovery of the moneys paid by him for the purchase of the property in auction .Normally speaking it would have been enough for me to refer to the Division Bench the judgment of this Court in Santimmappa v. Balbhim Co-operative Credit Society, AIR 1950 Bom 313, and allow the appeal However, I find that certain aspect of the question which did not fall for consideration of the Division Bench remained, undecided in the said decision presumably on account of the peculiar pleadings in that case. I find that without a decision being given on that aspect, the question falling for the consideration of this Court cannot really be said to have been fully decided and this is what has propelled me to give a rather fulsome judgment on the case as a whole. 2. The facts of the case fall within a very narrow compass. For the sake of convenience I will refer to the parties, with reference' to their position in the original execution proceedings, that is to say, as judgment-debtor, decree holder and auction-purchaser. Sometime before the year 1965 one Vishwanath had obtained a money decree against Moiz Gayasuddin, the judgment-debtor. In execution of the decree, he filed Darkhast No.2 of 1965 and brought the house property, presumably in possession of the judgment-debtor, for sale. On 3rd April, 1965, the said house was purchased by Jan Mohomed, hereinafter referred to as the plaintiff/auction-purchaser, for a sum of Rs. 4,025/-. The said sale was confirmed on 9-7-1965. After this confirmation, out of the amount of the sale proceeds, a sum of Rupees 1,600/- receivable by the decree-holder under the decree was paid to the decree-holder by the Court and the balance of the amount was paid by the Court to the judgment- debtor. A sale certificate was issued in favour of the auction-purchaser, which is Ex. 43 in these proceedings, on 9-7-1965. 3. A sale certificate was issued in favour of the auction-purchaser, which is Ex. 43 in these proceedings, on 9-7-1965. 3. It appears that either during these proceedings of the sale of the house in auction or immediately after 9-7-1965, Suit No.145/65 was filed by one Mahemudabi (who was none other than the wife of Gayasuddin, the judgment-debtor himself) for a declaration that it was she who was the owner of the property and that the judgment-debtor had not a title of right to have the property sold for satisfaction of the decree passed against him. She also applied for injunction restraining the decree-holder from interfering with her possession of the suit house. The said suit was decreed on 30-6-1967. The appeal against the said decree came to be dismissed on 11-6- 1968. It was in these circumstances that the present Suit No.229/69 was filed by the auction-purchaser on 29-10-1969 both against the decree-holder as well as the judgment- debtor for recovery of the amount of Rupees 4,025/-, that is to say, the purchase money which he had paid for the purchase of the house in question. The decree-holder was defendant No.1 and the judgment-debtor was defendant No.2 in the said suit. The learned trial Judge came to the conclusion that the plaintiff/auction-purchaser was entitled to recover the amount of purchase money deposited by him in the Court. Question arose as to from whom the plaintiff/auction-purchaser could recover the amount. This aspect of the matter is dealt with by the learned trial Judge very briefly in para 15 of his judgment. He observed therein as follows:- "15. As I have stated above the defendant No.1 took necessary precautions before putting the house for auction and there was no mistake committed by him in it and hence he cannot be held liable to return the amount to the plaintiff, but the suit amount is liable to be recovered either from the person or from the property of defendant No.2. It was he who allowed to put the house for auction knowing or believing it to know that it was of Mahmoodabi and not of his. In my opinion, the suit of the plaintiff is fit to be decreed against defendant No.2, and hence issues Nos. 4 and 5 are decided into (in the?) affirmative. His suit is fit to be dismissed against the defendant No.1. In my opinion, the suit of the plaintiff is fit to be decreed against defendant No.2, and hence issues Nos. 4 and 5 are decided into (in the?) affirmative. His suit is fit to be dismissed against the defendant No.1. There is no need to go in details how much amount was withdrawn by each of the defendants from the Court. The defendant No.2 is liable to pay the whole of the suit amount to the plaintiff." In the view taken by the learned trial Judge, he decreed the plaintiff's suit against the original judgment-debtor (defendant No.2) to the extent of Rs. 4,025/- with costs. The suit against defendant No.1, the decree-holder, was dismissed with no order as to costs. 4. Against the said decree the plaintiff/ auction-purchaser himself filed Appeal No. 357/71 to the District Court, Bhir. It is difficult to conjecture as to what motivated the plaintiff/auction-purchaser to file the said appeal. He had already got decree for the entire amount which he had prayed for. We assume that he was faced with some difficulty in the wake of execution of the same against defendant No.2 and probably that was what actuated him to prefer an appeal for the purpose of getting a decree against defendant No. 1 decree-holder as well. Whatever that may be, the fact remains that such an appeal was filed. In the said appeal, the learned District Judge held that the auction-purchaser had a remedy by way of an independent suit even against the decree-holder on the principles analogous to Section 65 of the Contract Act. He, therefore, held that a suit by auction-purchaser for recovery of the purchase money from the decree-holder was maintainable. The learned District Judge held that the decree-holder in the present case had recovered a sum of Rs. 1,600/- from out of the amount of Rs. 4,025/- deposited by the auction-purchaser and that, hence, the auction-purchaser was entitled to recover the said amount from the decree-holder. The learned District Judge, therefore, allowed the appeal; but the decretal order that he passed in the appeal is rather peculiar and of rather remarkable character. He set aside the portion of the judgment of the trial Court dismissing the suit against defendant No.1 decree-holder and decreed the plaintiff's suit against the Said decree-holder to the extent of Rs. 1,600/-. The learned District Judge, therefore, allowed the appeal; but the decretal order that he passed in the appeal is rather peculiar and of rather remarkable character. He set aside the portion of the judgment of the trial Court dismissing the suit against defendant No.1 decree-holder and decreed the plaintiff's suit against the Said decree-holder to the extent of Rs. 1,600/-. It is evident from the decretal order that so far as the decree for Rs. 4,025/- passed against defendant No.2 the judgment-debtor was concerned, he kept the same intact as it was. We are thus faced with a strange spectacle. The plaintiff auction-purchaser had filed a suit for Rs. 4,025/-; as a result of the judgment of the appellate Court, the decree is passed in his favour totally for a sum of Rs. 4,025/- plus Rs. 1,600/.-, that is to say, Rs. 5,625/-. The error contained in this part of the judgment, however, is the evident result of a technical slip. Since I am setting aside the entire decree passed by the appellate Court and since the decree passed by the trial Court against defendant No. 1 has got to be restored because he had filed no appeal against the same, I need not refer to this part of the error, the technical error, committed by the learned District Judge, in this judgment any further. 5. Against the said decree passed by the learned District Judge, the original decree-holder defendant No.1 in these proceedings, has filed the present Second Appeal. 6. As stated hereinabove, I am referring the plaintiff herein, as the auction-purchaser, defendant No. 1 as the decree holder and defendant No.2 as the judgment-debtor. 7. As regards the correctness of the judgment of the lower appellate Court, I am little unhappy to state that no pains appear to have been taken from the side of the Bar or the side of the Bench either to look up the case law on the point or to examine the first principles upon which the real question falling for determination in the appeal arose. The learned District Judge has relied upon the judgment of the Rajasthan High Court in Thakkar Lal v. Nathulal, AIR 1964 Raj 140 , to come to his ultimate decision. The learned District Judge has relied upon the judgment of the Rajasthan High Court in Thakkar Lal v. Nathulal, AIR 1964 Raj 140 , to come to his ultimate decision. By following the said decision, he has held that the decree-holder was liable to pay back the amount received by him to the auction-purchaser under the provisions of S.65 of the Contract Act. While relying upon the said decision attention of the Court should have been invited to the binding authority of this Court in Santimmappa's case (AIR 1950 Bom 313) (supra). The ratio decidendi of the Bombay authority is in direct conflict with that of the Rajasthan authority and it is needless to say that it is the Bombay authority which was binding upon the Court below. It is therefore a manifest error on the part of the learned District Judge to rely upon and follow the ratio of the Rajasthan judgment when the question in issue was finally decided by our own High Court. While making this observation, I am alive to the position that the Bombay judgment of the Division Bench might not have been, may must not have been, brought to the notice of the learned District Judge. But the rather sorry state of affairs emerges not from the fact that the Bombay judgment was not referred to by the learned Judge because of the want of assistance from the Bar, but the fact is that the Rajasthan High Court judgment, referred to above, itself refers to the Bombay judgment delivered by the Division Bench and the Rajasthan judgment mentions its disagreement with the Bombay view. When the attention of the learned Judge was invited to the Rajasthan judgment he could not have, or rather he should not have, lost sight of the important portion of the judgment where reference is made to the Bombay judgment. I do not wish to go into the matter more deeply, but earnestly hope that this observation will have its own effect for the guidance of the lower judiciary. 8. I do not wish to go into the matter more deeply, but earnestly hope that this observation will have its own effect for the guidance of the lower judiciary. 8. Coming to the question arising in this Second Appeal, the question really has got to be analysed as follows:- (1) Whether the auction-purchaser had any right to recover the purchase money deposited by him in the Court for the purpose of purchase of the property brought for sale in the execution proceedings on account of the fact that the judgment-debtor had no saleable interest in the property after the confirmation of the sale. (2) If he had any such right, who was the person, between the judgment-debtor and the decree-holder, upon whom the corresponding liability could be fastened. (3) Assuming that by virtue of the right In the auction-purchaser and the corresponding liability upon either of the judgment-debtor or the decree-holder there arose a cause of action in favour of the auction-purchaser, what was his remedy? Whether his remedy lay only within the machinery provided by Order 21 of the Civil P.C. or whether an independent suit was maintainable. (4) What would be the nature of the suit? That is to say, would it be founded in Torts, Contract, quasi-contract and so on? 9. As stated above, practically all the above questions have been fully answered by the Division Bench of this Court while deciding the case of Santimmappa v. Balbhim Co-op. Credit Society, AIR 1950 Bom 313. As will be presently pointed out, for some reason or the other, the last aspect of the question remained undecided by the Court Again, as will be presently pointed out by me, the real question in this dispute cannot besaid to be fully answered and decided unless even the last mentioned aspect is decided upon. This rather exhaustive judgment on my part is necessitated on account of this peculiar position. 10. This leads me to the judgment of this Court in Santimmappa's case (AIR 1950 Bom 313). The facts of the case were as follows: A co-operative credit society had obtained an Award against its judgment-debtor Basawwa for a sum of Rs. 576/-. In execution of the Award the property belonging to the judgment-debtor was brought to sale in Feb. 1934. This leads me to the judgment of this Court in Santimmappa's case (AIR 1950 Bom 313). The facts of the case were as follows: A co-operative credit society had obtained an Award against its judgment-debtor Basawwa for a sum of Rs. 576/-. In execution of the Award the property belonging to the judgment-debtor was brought to sale in Feb. 1934. There were some other creditors having enforceable rights against the same judgment- debtor; but the facts relating to that aspect of the case are totally irrelevant for our purpose and hence I need not mention the same in this judgment. The relevant fact is that the Co-operative Society brought the suit property belonging to the judgment-debtor for sale and the same was purchased by the auction-purchaser. The auction-purchaser also got possession of the property and the co- operative society got its moneys recovered from the amount paid by the auction-purchaser. Later on the adopted son of Basawwa filed a suit against the auction-purchaser for the recovery of the self same property contending that the original judgment- debtor had no right, title and interest to alienate the property. His suit was decreed and as a result of the decree the auction-purchaser was dispossessed of the property purchased by him in the auction sale. In these circumstances the auction purchaser filed a suit against the decree-holder, viz. the co-operative society, for refund of the purchase money from the society. The basis of the suit was that the judgment-debtor had absolutely no salable interest in the suit property and that, hence, the decree-holder was in equity liable to repay the moneys received from the auction-purchaser. The plaintiff! Auction-purchaser was non-suited by the trial Court and his appeal in the District Court met with the same fate. The auction-purchaser filed Second Appeal in this Court and it is this Second Appeal which was referred to the Division Bench for consideration. Reference to the Division Bench was necessitated by virtue of the apparent conflict between the two previous judgments of this very Court, viz. in Rustomji Ardeshir v. Vinayak Gangadhar, (1911) ILR 35 Bom 29 and in Balvant Raghunath v. Bala, ILR 46 Bom 833 : (AIR 1922 Bom 205). 11. The Division Bench consisting of Bavdekar and Dixit, JJ. Considered practically the entire case law on this point. in Rustomji Ardeshir v. Vinayak Gangadhar, (1911) ILR 35 Bom 29 and in Balvant Raghunath v. Bala, ILR 46 Bom 833 : (AIR 1922 Bom 205). 11. The Division Bench consisting of Bavdekar and Dixit, JJ. Considered practically the entire case law on this point. It firstly came to the conclusion that there was no real conflict between the above mentioned two Bombay authorities. The Division Bench held that the first authority which was decided as early as in the year 1911, reported In (1911) ILR 35 Bom 29, was really based Upon the old Civil P.C. of 1882, which had In effect given a specific right to the auction purchaser to file a suit against a decree-holder for recovery of his purchase money In the event of the failure of the consideration. The Division Bench found that the subsequent Civil P.C., 1908, had made a sharp departure from this legal procedure. The decision of this Court reported in ILR 46 Bom 833 : (AIR 1922 Bom 205) was based upon the new Code of the year 1908. In the latter Bombay authority the Court came to the conclusion that the suit contemplated by the old Code was itself the result of the statute and not the result of any common law right. Further, the Division Bench came to the conclusion that the right to sue, facilitated by the old Code, was taken away by the Civil P.C. of 1908. The Division Bench deciding the question in the yeas 1950 in Santimmappa's case thus found that there was no real conflict between the two authorities as such. 12. This Court in Santimmappa's case (AIR 1950 Bom 313) proceeded further to consider the question regarding the right of the auction-purchase in fullness. It considered the various aspects of the question and it held that the judgment of this Court in Balvant Raghunath v. Bala, ILR 46 Bom 833 : (AIR 1922 Bom 205) was a correct judgment. By the said judgment it was held that the auction-purchaser had no right to file an independent suit against the decree- holder after the confirmation of the sale for the recovery of the purchase money from him on the ground that the original decree holder (judgment debtor ? Ed.) had no saleable interest in the property in question. 13. By the said judgment it was held that the auction-purchaser had no right to file an independent suit against the decree- holder after the confirmation of the sale for the recovery of the purchase money from him on the ground that the original decree holder (judgment debtor ? Ed.) had no saleable interest in the property in question. 13. But while upholding the said judgment of this Court reported in (Balvant Raghunath v. Bala, 24 Bom LR 308 : ILR 46 Bom 833 : (AIR. 1922 Bom 205) the Division Bench deciding Santimmapp's case (AlR 1950 Born 313) went further and discussed the various decisions upon which the correct view was based. While doing so this Court had also examined the judgments of the various other High Courts, the conclusion arrived at by whom were at variance with each other. This Court also referred to the judgment of the Privy Council in support of its findings. It is not necessary for me to refer to each of the aspects examined, discussed and adjudicated upon by the Division Bench. Suffice it here to say that the Division Bench has specifically held in Santimmappa's case that neither the judgment-debtor nor the decree-holder gave warranty of title of any kind whatsoever at any time during the course of the auction-sale. Further this Court held that prior to the advent of 1908 Civil P.C. there existed a right available to the auction-purchaser to demand back the purchase money paid by him from the decree-holder, (if the judgment-debtor was found to be having no salable interest in the property) not only before the confirmation of the sale but even thereafter, that it emanated from the 1882 Code and that in view of the peculiar provisions of the 1882 Code he could do so even by resort to a suit. This Court held that this right was the creature of the specific statute, viz. Civil P.C., 1882 that this right was taken away by the subsequent Code of 1908 and that there ended the right of an auction-purchaser to file a suit for recovering back the purchase moneys paid by him in the given circumstances. 14. This Court held that this right was the creature of the specific statute, viz. Civil P.C., 1882 that this right was taken away by the subsequent Code of 1908 and that there ended the right of an auction-purchaser to file a suit for recovering back the purchase moneys paid by him in the given circumstances. 14. It was argued before the Division Bench that a suit would lie upon equitable consideration that a purchaser who had been misled because of the action of the decree-holder in bringing to sale the property in which the judgment-debtor had no saleable interest is entitled to hold the decree-holder responsible for the loss caused to him. The argument was two-fold. In the first instance it was argued that there was a misrepresentation by the decree-bolder and, secondly, it was contended that even otherwise the auction-purchaser was entitled to rescind the sale on the ground of mistake. This Court held that once it is held that no question of the decree-holder giving a warranty of title arose, no question of mis-representation could arise. As regards the plea of mistake, this Court observed in para 7 of the Judgment (AIR series) as follows:- "7. Now there is some authority for saying that where it is found subsequent to the auction sale that the judgment-debtor had no saleable interest in the property a suit for money had and received on the ground of total failure of consideration would lie. That such a suit would lie when the officer who held the sale had no authority to do so was pointed out by their Lordships of the Privy Council in the case mentioned above Dorab Ally Khan v. Abdul Azeez, (1878) 5 Ind App 116. We must not go, however, into that question in this case because the action which the plaintiff brought in this case was certainly not an action for money had and received." The question regarding the auction-purhaser's right to sue on the principle of money had and received was thus left unconsidered and undecided by this Court. Presumably, parties pleadings in the said case left no scope for the Court to Consider the effect of the equitable principle of moneys had and received. Presumably, parties pleadings in the said case left no scope for the Court to Consider the effect of the equitable principle of moneys had and received. But whatever the position may be in that case, so far as the present appeal is concerned, I find no justification to refrain from deciding the right of the auction-purchaser, if any, based upon the principle of moneys had and received. The facts and pleadings obtaining in the present case and the contentions advanced in all the three Courts including this Court compel me to decide this aspect of the case. 15. Moreover, it would be useful referring to the observations of this Court in paragraph 11 of the judgment in Santimmappa's case (AIR 1950 Bom 313) (supra). Those observations have been made with reference to the decision of the Full Bench of the Lahore High Court (AIR 1932 Lah 401), which decision was based upon Section 65 of the Contract Act. While dealing with the view of the Lahore High Court this Court observed as follows: "11. It is true that their Lordships of the Lahore High Court in the Full Bench case which I have mentioned above referred to this section, but they referred to this section as well as to other sections of the Contract Act merely by way of analogy. The ground upon which they based their conclusion, viz. that the auction purchaser was entitled to file a suit for refund of the purchase money, was two-fold; (1) there was a representation by the judgment-creditor when he brought the property to sale that the judgment-debtor had some interest in the property. They said consequently that there was a misrepresentation by the judgment-debtor for which subsequently the auction purchaser was entitled to avoid the transfer. In the second instance they said that there was also a mistake by both the parties and an action for money had and received would therefore lie. Immediately we hold that there is no representation by the judgment-creditor that the judgment-debtor has some interest in the property, the argument that the sale can be avoided because of misrepresentation fails. In the second instance they said that there was also a mistake by both the parties and an action for money had and received would therefore lie. Immediately we hold that there is no representation by the judgment-creditor that the judgment-debtor has some interest in the property, the argument that the sale can be avoided because of misrepresentation fails. In our view, therefore, it is not possible to accept the view that an auction purchaser who has not come to Court to set aside the sale in time had either independently or under the present Code a right of suit other than a suit for money had and received." 16. It will be noticed that even while considering the view of the Lahore High Court, the Division Bench has expressed no opinion on the question of the right of the. Auction-purchaser to sue on the basis of moneys had and received. It is this aspect of the judgment of the Division Bench that has propelled me, with infinite deference to the Bench, to give this rather fulsome judgment expressing my views regarding the right of the auction-purchaser arising out of the doctrine of moneys had and received. To my mind, it cannot be said that the auction purchaser's claim is fully adjudicated upon unless his right under the said doctrine of moneys had and received is fully examined, and hence I have devoted some time and space to this aspect of the case in spite of the fact that ultimate conclusion that I have arrived at is the same to which the Division Bench had arrived while deciding Santimmappa's case (AIR 1950 Bom 313). 17. There is another reason why I feel that the examination of the various manifestations of the doctrine of moneys had and received is necessary in the context of the facts of the present case. After the judgement in Santimmappa's case there has been a well considered judgment of the Division Bench of the Rajasthan High Court reliance upon which has been placed by the lower Appellate Court. After the judgement in Santimmappa's case there has been a well considered judgment of the Division Bench of the Rajasthan High Court reliance upon which has been placed by the lower Appellate Court. In the said judgment the Rajasthan High Court has given relief to the auction-purchaser against the decree-holder in identical circumstances by resorting to the principle of moneys had and received, I have no doubt expressed my disapproval of the fact that while following the authority of the Rajasthan High Court, the learned District Judge had overlooked the judgment of the Division Bench of this Court in Santimmappa's case (AIR 1950 Bom 313). That was because, evidently, the Rajasthan judgment could have only a persuasive effect, whereas the judgment of this Court in Santimmappa's case was a binding authority so far as the lower appellate Court was concerned. But that fact does not obviate the necessity of this Courts considering the correctness of the judgment delivered by the Division Bench of the Rajasthan High Court. This is so for two reasons in particular. Firstly, the decision in santirnmappa's case was examined and followed by a learned single Judge (Jagat Narayan, J.) of the Rajasthan High Court in Thakar Lal v. Nathulal. AIR 1961 Raj 193 . But this decision was overruled and the Division Bench ruling of this Court in Santimmappa's case was dissented from by the Division Bench of the Rajasthan High Court in the case of Thakar Lal v. Nathulal, AIR: 1964 Raj 140 secondly, because, I must say with great respect, their Lordships of the Division Bench of the Rajasthan High Court have Summarised the previous case law in a very happy manner. It is stated by their Lordships of the Rajasthan High Court in paragraphs 4, 5, 6 of their judgment (AIR series) as follows: "4. The principal question which thus emerges, for determination in this appeal is whether an auction purchaser is entitle to recover back the purchase money from the decree-holder after the confirmation of the sale in his favour if it is held in a suit bought by a third party that the judgment-debtor had no saleable interest in the property purchased the auction-purchaser, and, thereafter he is deprived of the possession of such property. 5. 5. As rightly observed by the learned single Judge, there is a divergence of judicial opinion on this point among the various High Courts in India, and, if we may say so, this divergence is further to be found in some cases between the decisions of the same High Court. One view is that an auction-purchaser at a court sale is not entitled to maintain a suit for the recovery of the purchase money paid by him in the event of the judgment-debtor being proved not to have any title to the property sold after a sale has been confirmed. This view is based on the ratio decidendi that there is no warranty of title in an auction sale and the auction-purchaser has, therefore, no right either in law or in equity to recover the purchase price from the decree-holder in case it subsequently turns out, that what he has purchased does not belong to the judgement-debtor. Reliance has also been placed in support of this view on the theory that a statutory right was granted by S.325 of the C.P. Codes of 1877 and 1882 by which an auction-purchaser was entitled to sue to recover the purchase price under those Codes; but with the repeal of that section in the Code of 1908, that statutory right came to an end, and Rr.91 to 93 of O.21 of the present Code do not permit any such thing to be done. This view is forcefully propounded in a Full Bench decision of the Allahabad High Court In Amarnath v. Firm Chotelal, AIR 1938 All 593 (FB), and a Bench decision of the Bombay High Court in Santimmappa v. Balbhim Co-op. Credit Society, AIR 1950 Bom 313. To indicate the acuteness of the conflict which has existed on this subject it may permissible to point out at this place that in an earlier Full Bench decision of the Allahabad High Court in Bindeshri Parshad Tewari v. Badal Singh, AIR 1923 All 394 (FB), it was held that an auction-purchaser under a decree which had been set aside after the confirmation of the sale as a result of a separate suit was entitled to recover his purchase money from the decree-holder. It was further held in this case that his remedy lay by an application under S.47, C.P.C. As other instances of decisions on this side of the line, we may refer to Kameshwar Singh v. Bansidhar Marwari, AIR 1937 Pat 532. Amal Chandra v. Ram Swarup, AIR 1939 Cal 310 and Abinash Chandra v. Motilal, AIR 1961 Cal 172 . 6. On the other side of the line are the Full Bench decisions of the Oudh Chief Court and the High Courts of Lahore, Madras and Rangoon in Bahadur Singh v. Ram Phal, AIR 1930 Oudh 148 (FB), Mehar Chand v. Milkhi Ram, AIR 1932 Lah 401 (FB), Macha Koundan v. Kottora Koundan, AIR 1936 Mad 50 (FB) and Aye Maung Maung v. A. Scott and Co., AIR 1940 Rang 1 (FB) respectively, and the High Court of Travancore Cochin in state v. Padmanabhan Pillai, AIR 1956 Travco. 216 and of Andhra Pradesh in P. Malliah v Brahmaya, AIR 1960 Andh Pra 89, have also taken the same view. The view taken in these cases, broadly speaking, is that the purchaser of an immovable property at an auction held by the Court in execution of a decree is entitled to maintain a suit for recovery of the price paid by him, if he is deprived of the property subsequent to the confirmation of the sale in his favour, the judgment-debtor having been found to have had no salable interest in it, inasmuch as the sale in such a case is founded on a mutual mistake of fact between the decree-holder and the auction-purchaser or there is a total failure of consideration, or such a clam is accepted to be maintainable on the basis of money had and received or a like equitable ground. It has been further held in these cases that the object of the Legislature in enacting R.93 of O.21, C.P.C. by which an auction-purchaser is entitled to an order for the repayment of the purchase money on the setting aside of a sale before it is confirmed was not to deprive the auction-purchaser of any rights which he otherwise may have had in that connection but was merely to provide him with an unconditional right, capable of being enforced summarily to get back the purchase money if and when the sale is set aside under R. 92 and it is maintained that in other cases, his right to have recourse to the ordinary remedy of instituting a suit for refund and to bring his case within the ambit of the rules of equity of what may be called the general principles of law cannot be held to have been adversely affected." I do say with great respect that no fault can be found with the summary of the case law regarding both the schools of thought propounded by the various High Courts. After giving the summary of the view expressed by the two schools of thought, the learned Judges observed in para 7 of the report as follows: ".. With respect, we believe that in a matter attended with such divergence of opinion, the best course should be to deal with the controversy on first principles and this is therefore the course which we think fit to adopt. The more so, as we are unable to agree with all the reasons which have been given by even those Courts which favour the view which has commended itself to us." 18. However, after expressing their determination to decide the case on first principles all that their Lordships of the Rajasthan High Court say in this behalf is that there was no cogent reason on the whole, as to why an auction-purchaser who has been deprived of the property purchased by him as a result of a suit filed by third party against him……. Should not have the right to recover the purchase money paid by him, on the broad consideration that a purchaser should not be made to lose the property as well as the price he paid for it for no fault of his (emphasis supplied). Should not have the right to recover the purchase money paid by him, on the broad consideration that a purchaser should not be made to lose the property as well as the price he paid for it for no fault of his (emphasis supplied). I emphasise the words "for no fault of his" because, to my mind, those are the words which make the view of the Rajasthan High Court a vulnerable one. This position becomes clear from what is stated by their Lordships of the Rajasthan High Court in paras 10 and 11 of their judgment. As for instance their Lordships have specifically repelled the view that there was some misrepresentation or fraud practised by the judgment-debtor upon the auction-purchaser. The learned Judges have thus, in effect, found that no right accrued to the auction-purchaser either under the law of Torts or of Contract to claim back the purchase money. However, after having found that there was no justification for assuming any such right in favour of the auction-purchaser on the basis of implied warranty of title or fraud or misrepresentation, their Lordships of the Rajasthan High Court still proceeded to hold that there did vest some kind of right in the auction-purchaser to recover back the moneys. Evidently this view is arrived at by the Court on the lone belief that auction-purchase was not at fault. But if the auction-purchase was not at fault so were the decree-holder or judgment-debtor not at fault. Fault could be legitimately imputed to the decree-holder or judgment-debtor if either of them was guilty of misrepresentation or fraud; but we have seen that ground is not sustainable at all and even the Rajasthan High Court has wholly exonerated the decree-holder as well as the judgment-debtor of that charge. Moreover, it may not be wholly correct to say that the auction-purchaser was at no fault at all. I will refer to this aspect presently, but here I will deal with another aspect of the reasoning of the learned Judges of the Rajasthan High Court. Another basis of their reasoning is that the auction-purchaser "should not be made to lose the property as well as the price he paid for it for no fault of his". I will refer to this aspect presently, but here I will deal with another aspect of the reasoning of the learned Judges of the Rajasthan High Court. Another basis of their reasoning is that the auction-purchaser "should not be made to lose the property as well as the price he paid for it for no fault of his". If that was so, why should the decree-holder be made to lose the fruits of the decree as well as the sale proceeds received from the Court in satisfaction of the decree? 19. It is necessary to analyse this theory of loss being caused to the auction-purchaser "for no fault of his" as also the theory of double loss to him. If we analyse this aspect we shall have to note that there is a basic difference between a transaction of voluntary sale between two willing parties and transaction of compulsory sale like a Court sale between two parties, one of whom is an unwilling party and the other is a party hoping to get some advantage from the fact that the sale was a compulsory sale. In the normal voluntary sale there is the warranty of title but the raison de'etre for the warranty itself is that the purchaser has paid full amount that the vendor expects from his property. This is not so in the case of any compulsory sale, such as the auction sale. It is well known that in the case of an auction sale the auction-purchaser expects and hopes to purchase the property at the price much lower or at least somewhat lower than its market price. This is the principal advantage which the auction-purchaser gets in the compulsory sale such as the Court sale and this is something of which the Court is entitled to and must take judicial notice. This is the reason why the auction-purchaser has got the corresponding disadvantage of subjecting himself to a risk, viz., that, perhaps, he might not get anything whatsoever for the moneys paid by him. The theory that he loses both the moneys and property for no fault of his is, therefore, not quite correct. 20. Moreover, such a position is not unusual even vis-à-vis a private sale. Sec.55(2) of the Transfer of Property Act ensures warranty of title to the purchase of immovable property, but even such statutory warranty is subject to a contract to the contrary. 20. Moreover, such a position is not unusual even vis-à-vis a private sale. Sec.55(2) of the Transfer of Property Act ensures warranty of title to the purchase of immovable property, but even such statutory warranty is subject to a contract to the contrary. A purchaser purchasing any property subject to such a contract to the contrary can never be heard to complain that his vendor has no salable interest in the property in question. It could be readily seen that the position of a purchaser at Court sale is no better than that of a private purchaser such as the above who purchases the property subject to a contract to the contrary. Such private purchaser could not be heard to complain that he was deprived of his purchase money for no fault of his. 21. After formulating the question that fell for their consideration the learned Judges of the Rajasthan High Court have observed as follows (at p.145): "… and we see no reason why such wrong should be allowed to go altogether unredressed. The right to recover money that has been paid for a certain consideration, which has absolutely failed, and which is the sale of the property of which the auction-purchaser has been completely dispossessed is, in our opinion, a right of a civil nature. " 22. The above reasoning of the Division Bench of the Rajasthan High Court assumes, (a) that there was a right vesting in the auction-purchaser to recover back the purchase money if the consideration paid by him absolutely failed; (b) consequently there was a wrong done to him. 23. The question then arose as to what is the source of the said right vesting in the auction-purchaser. The learned Judges therefore proceeded to find out the source of this right from (i) the doctrine of frustration finding place in S.65 of the Contract Act; (ii) doctrine of moneys had and received obtaining in the English law. 24. So far as the provisions of S.65 of the Contract Act are concerned, that aspect of the question is already considered and disposed of by the Division Bench of this Court in Santimmappa's case (AIR 1950 Bom 313) (supra) and hence it is not necessary for me to re-examine that aspect of the case. 24. So far as the provisions of S.65 of the Contract Act are concerned, that aspect of the question is already considered and disposed of by the Division Bench of this Court in Santimmappa's case (AIR 1950 Bom 313) (supra) and hence it is not necessary for me to re-examine that aspect of the case. It is sufficient for me to say with great respect that I am fully in agreement with what is expressed by their Lordships, viz., that the principles underlying Section 65 of the Contract Act can have no application whatsoever to the kind of transaction, such as the instant one. 25. It is the second source of the auction-purchaser's right, doctrine of moneys had and received, relied upon by the Rajasthan High Court, that necessitates closer examination. This question is dealt with in para 18 onwards in the said judgment. But I am somewhat surprised that instead of examining the same with reference to the basic principles of common law or equity, the learned Judges have examined the same mainly with reference to and have decided the same mainly by reliance upon the provisions of Article 62 of the Limitation Act. This is what they observe:- "18. We should also like to mention that right like this may also be founded on the principle of money had and received which has been recognised under the English law and to which effect has been given under the Indian Law also as would appear from the language of Art.62 of the Indian Limitation Act. It has been observed that when this article speaks of a suit far money received by the defendant for the plaintiff's use. It points to the well known English action in that form and consequently it applies where the Defendant has received money which in justice and equity belongs to the plaintiff under circumstances which in law renders the receipt of it a receipt by the defendant to the use of the plaintiff. Thus where money is paid by the plaintiff to the defendant under an agreement which is void or which is discovered to be void, the money would be money received by the defendant for the Use of the plaintiff within the meaning of this article. Thus where money is paid by the plaintiff to the defendant under an agreement which is void or which is discovered to be void, the money would be money received by the defendant for the Use of the plaintiff within the meaning of this article. We have had occasion to consider the scope and ambit of Article 62 of the Limitation Act in Jain Brothers and Co., Bundi v. State of Rajasthan (Civil Reference No.64 of 1961, D/-19-8-1963: (AIR 1964 Raj 17) to which both of us were parties) and what we held there may be briefly reproduced in the following extract (at pp.20-21): '' 'Our conclusion, therefore, on a most, careful and earnest consideration that we are able to give to this vexed matter is that we find it difficult to escape the view, on the whole, that the correct interpretation to be put on the key words in Art. 62 is the one which should conform to the meaning of these words in the English cases and that simple or literal interpretation of these words which appear to us to be clearly technical as discussed above would not be correct. That being so, it must follow that Art. 62 governs suits for money had and received, not only where the defendant may have actually received money for the, the of the plaintiff as his agent or in a like capacity, but it also governs suits for money whereof it can be rightly postulated that the defendant has received money which he had no right to receive and the receipt whereof by the defendant therefore amounts in law or by a legal function to a receipt by him for the plaintiff's use'. " 26. In this connection I must state at the very outset that the Limitation Act (Art. 27 thereof -corresponding to Art.28 of the old Act) does not create any substantive right in favour of any party. The right of the plaintiff/auction-purchaser could not, therefore, be said to be flowing from any of the provisions of the Limitation Act. It is true that the Limitation Act does give an indication of certain causes of action arising out of certain substantive law. But the Limitation Act by itself does not create any new right from which a cause of action stems. That Act can hardly be considered as a source of right. 27. It is true that the Limitation Act does give an indication of certain causes of action arising out of certain substantive law. But the Limitation Act by itself does not create any new right from which a cause of action stems. That Act can hardly be considered as a source of right. 27. All the same, let us examine the provisions of Article 62 of the old Limitation Act, which Provided as follows: Decription of suit. Period of limitation. Time from which period begins to run. 62. For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. Three years When the money is received Let us now examine whether the cause of action for the plaintiff's present suit can be said to be governed by the said Article 62. In order that the Article may so govern the plaintiff's cause of action, it must be shown that the decree-holder Received moneys from the auction-purchaser and the moneys were received by him for the auction-purchaser's use. It is difficult to see how the cause of auction of the plaintiff-auction-purchaser's suit in the instant case could be said to be of the description given in column 1 or the said Article 62. The decree-holder did not receive moneys from the auction-purchaser. He received it from the Court where the auction-purchaser had deposited the same. There was absolutely no privity between the decree-holder and the auction-purchaser. Further, it is difficult to see as to by what principle of common law or equity the decree- holder would be said, to have received the same to the auction-purchaser's "use". This is one of the aspects of the matter, which shows that the plaintiff cannot be, said to be having any conceivable cause of action against the decree-holder. 28. I would like to probe the matter a little deeper. Does Article 62 enact any substantive law? No. It provides only a period of limitation in respect of a cause of action which is the Result of the substantive law. The substantive law as such is to be found elsewhere. In the instant case it will be found principally in S.72 of the Contract Act Unfortunately, the attention of the learned Judges of the Rajasthan High Court was not invited to the said S.72 of the Contract Act. The substantive law as such is to be found elsewhere. In the instant case it will be found principally in S.72 of the Contract Act Unfortunately, the attention of the learned Judges of the Rajasthan High Court was not invited to the said S.72 of the Contract Act. To my mind, the correct legal position is that the said S.72 of the Contract Act exhausts all the categories of cases of moneys had and received so far as the law in force in India is concerned. Section 72 of the Contract Act may, therefore, be set out verbatim: "72. A person to whom money has been paid or anything delivered by mistake or under coercion, must repay or return it." Since, to my mind, the said S.72 embraces all the aspects of the doctrine of moneys had and received so far as the law applicable in India is concerned, I will first analyse this section and see whether the plaintiff's suit could be said to be governed by this section. I will thereafter proceed to give my reasons for holding that the section is exhaustive as regards the suit based on the doctrine of money had and received. 29. Coming to the analysis of this section vis-à-vis the facts of the present case, what the section provides is that the person who receives money from another person must pay back to himself. One cannot read the section as follows: "A person who is paid money or has delivered anything by mistake or under coercion, receive the same." I am stressing this aspect of the case because it must be seen that in cases such as the instant case the auction-purchaser has not paid moneys to the decree-holder at all. The moneys were deposited by him in the Court. The moneys were received by the' decree-holder from the Court. On a plain analysis of S.72, therefore, the principle underlying the said section can have no application to the supposed rights of auction-purchaser to recover back his money on account of failure of consideration. If this section does not apply, it follows that Art.62 of the Limitation Act would be equally inapplicable. Reliance upon the said article for spelling out the liability of the decree-holder towards the auction-purchaser is, therefore, not justified. 30. Let us now consider the question as to whether S.72 of the Contract Act is exhaustive in its character. If this section does not apply, it follows that Art.62 of the Limitation Act would be equally inapplicable. Reliance upon the said article for spelling out the liability of the decree-holder towards the auction-purchaser is, therefore, not justified. 30. Let us now consider the question as to whether S.72 of the Contract Act is exhaustive in its character. It is well-known that the principle embodied in the said Section 72 is equitable principle, although it has now become a part of the English Common Law. It may be that the principle has received more amplification and is of wider amplitude in English law. But the framers of the Indian Contract Act have chosen to give to the same statutory shape in the form of S.72 of the Contract Act. It is well-known that when a principle of common law is embodied in a statute it is not open for a Court to rely upon the principle of common law merely because the provision of the statute does not cover or govern the case before them. (See AIR 1959 SCI 135 headnotes © and (d)). 31. But assuming that I am not right in holding that S.72 of the Contract Act is exhaustive in this behalf and even assuming that the principle of moneys had and received has some other source as well on the general principles of English law. I must point out that even applying the principles of English law the auction-purchaser could not be said to be having any equity in his favour. 32. Reference in this behalf may be made to most relevant principle that equity cannot come to the rescue of any person who suffers any detriment to himself with open eyes. Reference in this behalf may be made to Dutton v. Thompson, (1883) 23 Ch D 278 at. 281, where it is held: "It is not the province of a Court of justice to decide on what terms or conditions a man of competent understanding may choose to dispose of his property. Reference in this behalf may be made to Dutton v. Thompson, (1883) 23 Ch D 278 at. 281, where it is held: "It is not the province of a Court of justice to decide on what terms or conditions a man of competent understanding may choose to dispose of his property. If he thoroughly understands what he is about, it is not the duty of a Court of Justice to set aside a settlement which he chooses to execute on the ground that it contains clauses which are not proper." (Cited with approval by Snell's Principles of Equity at page 126, 27th Edition.) Reference may also be equally made of the recognised principle of equity, viz. that a equity does not save people from consequences of their own folly, but will save them from being victimised by other people (see (1887) 36 Ch D 145 at pp.182, 183 and (1952) 2 TLR 516 at p.519). (See Snell's Principles of Equity page 546). 33. If we appreciate the fact that the auction-purchaser has exposed himself to a risk with open eyes it can be safely said that there can be no equity in his favour and hence not even any independent principle analogous to the one embodied in Section 72 of the Contract Act can be invoked by the plaintiff/auction-purchaser. Assuming therefore that S.72 of the Contract Act is not exhaustive, still I find there is no cause of action accruing to the plaintiff/auction a purchaser for refund of purchase money. 34. In any event no cause of action can be said to have accrued to the plaintiff as against decree-holder. I set out this position particularly to point out that even assuming that the auction-purchaser has got some kind of equity in him, at least he has no equity higher than the one had by the decree-holder. In the case before us the decree-holder has as much equity as the auction-purchaser has, if not more. After all it is he who has parted with the moneys in favour of the judgment-debtor, had wasted his time, money and energy for instituting the litigation and had obtained a decree against the judgment-debtor. It is not, as if he had given any invitation to the auction-purchaser to purchase the property. After all it is he who has parted with the moneys in favour of the judgment-debtor, had wasted his time, money and energy for instituting the litigation and had obtained a decree against the judgment-debtor. It is not, as if he had given any invitation to the auction-purchaser to purchase the property. It has been held by this Court and even by the Rajasthan High Court that he gave no warranty of title to the auction-purchase when the auction-purchase paid for the purchase of the property in auction. The equities are, therefore, at least equal in this a case, if not higher as against the auction-purchaser. It is well known that when equities are equal the first in time shall prevail. In the present case the equity in favour of the decree-holder is undoubtedly first in point of time and, therefore, it must prevail and therefore the auction-purchaser cannot be said to be having any right against the decree-holder at all. 35. The Division Bench of the Rajasthan High Court has also observed and held that right of the plaintiff is of a civil nature contemplated by S.9 of the Civil Procedure Code. But to my mind this approach rests upon a basically erroneous postulate. Section 9 of the Civil Procedure Code does not create any right in favour of any party at all. All that S.9 of the said Code says is that if any person has a right of civil character he can enforce it in a Court of civil law unless the same is barred by any statute or otherwise. For finding out as to whether the plaintiff has got any cause of action or not, one has to turn not to Section 9 of the Civil Procedure Code but to the substantive law and the substantive law does not seem to have devised any right for an auction-purchaser, in the case such as the present one. While making this observation I am ignoring the cases where the auction-purchasers claim is founded upon fraud or misrepresentation. The claim of the auction- purchaser such as that would be clearly governed by the law of torts. But I find that there is no right in the auction-purchaser against the decree-holder and hence Sec.9 of the Civil Procedure Code cannot be invoked at all. 36. The claim of the auction- purchaser such as that would be clearly governed by the law of torts. But I find that there is no right in the auction-purchaser against the decree-holder and hence Sec.9 of the Civil Procedure Code cannot be invoked at all. 36. In this connection I may very briefly analyse the various sources of substantive rights of persons which may give them cause of action for filing suits against other persons. Under the common law, a right can be founded either in torts or contract. Thereafter there come rights arising out of the various statutes. It is well-known that equity stepped in thereafter and rights which were not recognised by common law were recognised and enforced in Courts of Equity. It is thus that we find rights in the nature of trusts, etc. Lastly, we find rights arising out of the provisions of the Constitution of the various countries which may fall in a class of their own. I have pointed out that the plaintiff/auction-purchaser can have no right in contract. He cannot fasten any tortious liability upon the decree-holder. By no stretch of imagination it can be conceived that a decree-holder holds moneys in trust for the auction-purchaser. This is for the very simple reason that there cannot be conceived any relationship between the plaintiff/auction-purchaser and decree-holder. All that we are left with, then is right under the statute. A brief examination of the history of Civil Procedure Code in this behalf would show that the plaintiff/auction-purchaser's rights are extended by the provisions of the Code and they have no place outside the Code. This Court had considered this aspect of the question while considering Santimmappa's case. This Court had come to the conclusion that 1882 Code created a right in favour of auction-purchaser to recover the moneys. This Court also held that the right could be exercised not only by filing application in the execution proceedings, but the remedy of the auction-purchaser lay even in an independent suit and that too even after the confirmation of the sale. This Court further held that the amendment brought about in his position by the 1908 Code did away with this extra right of the auction-purchaser to file a suit for refund of money even after the confirmation of sale. This Court further held that the amendment brought about in his position by the 1908 Code did away with this extra right of the auction-purchaser to file a suit for refund of money even after the confirmation of sale. This Court left the question open whether an independent suit on moneys had and received was maintainable or not. But this Court has specifically overruled any contention regarding maintainability of an independent suit under any provisions or principles of law. I have held here that the principle of money had and received cannot be invoked by the auction-purchaser in the context of the facts of the present case. 37. It would be somewhat enlightening and illuminating to have a look at the course that Civil Procedure Code has now adopted by virtue of the latest amendment. From the latest amendment it is clear that the procedure under O.21 of the Code is an extensive and self-contained Code for the purpose of rights of the auction-purchaser for recovering back of his purchase moneys. 38. Reference may be made in this connection to the old provisions of the unamended Civil Procedure Code contained in O.21, R.103. These provisions specifically provided for independent suit, but even that suit related to the title of the judgment- debtor to the property in question. An auction-purchaser could not file a suit against either the judgment-debtor or a decree-holder for recovery of the purchase money deposited by him in Court. Under the amended Civil Procedure Code, which is in force at present, the entire provision for the independent suit is done away with and a self-contained machinery is provided whereby, if a judgment-debtor has no saleable interest in the property sought to be purchased by the auction-purchaser, he can recover back the purchase money deposited by him in the Court. Having regard to this scheme of these various Codes, I find no reason for holding that the unamended Civil Procedure Code, 1908 envisaged a suit being filed by the auction-purchaser against the decree-holder for refund of purchase money deposited by him in the Court. 39. I may mention here that I have considered the question of the right of the auction-purchaser only against the decree-holder. I have not expressed any opinion as regards the auction-purchaser's right against the judgment-debtor, as such. 39. I may mention here that I have considered the question of the right of the auction-purchaser only against the decree-holder. I have not expressed any opinion as regards the auction-purchaser's right against the judgment-debtor, as such. Prima facie it appears to me that since it is not a voluntary sale by the judgment-debtor, the same principle should hold the field; but I need not express any opinion on that point since the same does not arise in this appeal 40. However, in the present case the trial Court had passed a decree against the judgment-debtor for the full amount claimed by the auction-purchase and he had filed no appeal against the same. The decree passed against him has therefore become final. The decision in the present appeal can have no effect upon the said decree obtained by the decree-holder against the original judgment- debtor. 41. I have delivered rather a fulsome judgment in this case because I find that this question arises with too much of frequency before the Courts and because the important aspect of the case was undecided by this Court in Santimmappa's case (AIR 1950 Bom 313). 42. In view of the position discussed by me above, the appeal filed by the decree holder must be allowed The decree passed by the lower Court is set aside and the one passed by the trial Court is restored. The appeal is allowed with costs against the plaintiff. Appeal allowed.