PRIVY COUNCIL

                Jai Berham

                Vs.

                KedarNath Marwari

                                P.C.A.No. 7 of 1921
                (Lords Phillimore Carson and Sir John Edge.JJ.)

                19.6.1922

                JUDGMENT

Lord Carson J.

1.The question to be decided in this appeal arises out of an order on appeal made by
His Majesty in Council dated the 19th December, 1913, which set aside an auction
sale of certain landed property held on the 27th July, 1904, in execution proceedings
in the Court of the Subordinate Judge of Godda.

2. The case before this Board is reported in ThakoorBarmha, v. Jiban Ram1

3. Raja ThakoorBarma, since deceased, the predecessor, in-title of the appellants 1 - 5
(hereinafter referred to as the judgment-debtors) was the owner of a full 16 annas
share of a village called Patsanda. Ten of the said shares were encumbered and six
were unencumbered, save that two bonds had been executed by the Rajah in favour of
one Gobardhan Das and others, which purported to create a charge on a 3 annas share
in the said mahal as security for the said Gobardhan Das for Rs. 23,965 and Rs. 532.

4. Six annas share of the encumbered property was attached for a judgment debt in
execution of a decree obtained by the respondents third party, and sold on the 27th
July, 1904. The respondents first and second parties are the representatives of the
original auction purchasers and are hereinafter referred to as the auction purchasers.

5. The purchase money was a sum of Rs. 1,12,000, and this sum was paid into Court
and eventually distributed to various mortgagee decree-holders and others holding
money decrees against the judgment debtor whose debts were thereby discharged to
the extent of such payments.
6. The auction purchasers claimed to have purchased for the sum aforesaid the six
unencumbered 6 annas share, and on the 21st December, 1904, a sale certificate was
granted to the auction purchasers, which declared the respective interests of the
auction purchasers in the six annas share, and also declared that such share was
subject to the charge created by the afore mentioned bonds, and was outside the 10
annas share hereinbefore described as the encumbered property.

7. On the 26th December, 1904, the auction-purchasers, were duly put into possession
of the said six annas share and paid off on the 7th February, 1905, the amounts
covered by the two bonds. An appeal was subsequently made by the Rajah to the High
Court of Calcutta against the order of the Subordinate Judge of the 21st December,
1934, granting the said sale certificate, and when this appeal was dismissed, he
appealed further to His Majesty in Council, and this Board on the 25th November,
1913, advised that the appeal should be allowed and that the order of the Subordinate
Judge confirming the sale, together with the said certificate of sale of the 21st
December, 1904, should be set aside and added "this will, of course, have the effect of
setting aside all subsequent proceedings on the part of the auction-purchasers based
thereon."

8. In consequence of this order setting aside the sale, the judgment-debtors applied to
the Subordinate Judge claiming restoration to them of the said 6 annas share of the
property, together with manse profits.

9. The auction-purchasers resisted the said claim, and contended (1) that the auction-
purchasers could not be asked to restore the property until (a) the amount which they
had deposited in Court to complete the sale ; and (b) the sum paid by them to satisfy
the bonds given by the Rajah to Gobardhan Das, had been refunded and they also
claimed that Chaturi Ram Marwari, one of the auction-purchasers, who was a
respondent in the appeal before the Privy Council, had died before the hearing, and
that therefore the order of His Majesty in Council could not affect his share, viz., ½ an
anna of the 16 annas.

10. The Subordinate Judge overruled all the contentions of the auction-purchasers, and
by an order dated the 20th August, 1916, ordered restitution to the judgment-debtors
of the said 6 annas share, together with the manse profits from the date of delivery of
possession of the said property, after the auction sale on the 27th July, 1904.

11. From that order the auction-purchasers appealed to the High Court of Judicature at
Patna, who, by order dated the 14th December, 1916, set aside the order of the
Subordinate Judge, and in lieu thereof, ordered that the Subordinate Judge should
ascertain :

       (1) "Whether Chaturi Ram died before the hearing of appeal by the Judicial
       Committee; (2) that he do ascertain the amount of mesne profits due on the
       share in respect of which restoration is to be made ; and (3) that he set off the
       sum due to the judgment- debtors as mesne profits against the sum due to the
       auction-purchasers in recovery of their deposit and in the event of the sum due
       to the judgment-debtors being in excess of the sum due to the auction-
       purchasers he do restore possession of the property forthwith to the judgment-
       debtors and in the event of the sum due to the auction-purchasers being in
       excess of the sum due to the judgment-debtors, he do refuse to restore
       possession of the property until the deficit due to the auction-purchasers has
       been made up either by the decree-holders or by the judgment-debtors
       themselves."
12. It is to be observed that the Court made no order as to the claim of the auction-
purchasers to be paid, as preliminary to restoring possession, the sum paid to
Gobardhan Das in respect of the two bonds, creating a charge on 3 annas share of the
unencumbered property sold to the auction-purchasers.

13. The appellants (the judgment-debtors) have applied to His Majesty in Council
against the said judgment and decree of the High Court, dated the 14th December,
1916, and the auction-purchasers respondents first and second parties, have entered a
cross-appeal relating to the payments to Gobardhan Das as aforesaid. On the main
question, viz., whether the auction-purchasers are entitled to re-payment of the deposit
paid into Court as a condition precedent to their handing over possession to the
judgment-debtors, their Lordships are in agreement with the judgment of the High
Court, and think the order already referred to should on this point be affirmed.

14. It is the duty of the Court under Section 144 of the Civil Procedure Code to "place
the parties in the position which they would have occupied, but for such decree or
such part thereof as has been varied or reversed."

15. Nor indeed does this duty or jurisdiction arise merely under the said section. It is
inherent in the general jurisdiction of the Court to act rightly and fairly according to
the circumstances towards all parties involved. As was said by Cairns, L.C. in Rodger
v. The Comptoird'Escompte de Paris 2

       "One of the first and highest duties of all Courts is to take care that the act of
       the Court does no injury to any of the suitors and when the expression 'the act of
       the Court,' is used, it does not mean merely the act of the primary Court, or of
       any intermediate Court of Appeal, but the act of the Court as a whole from the
       lowest Court which entertains jurisdiction over the matter up to the highest
       Court which finally disposes of the case."
16. The auction-purchasers have parted with their purchase-money which they paid
into Court on the faith of the order of confirmation and certificate of sale already
referred to. This money has been distributed amongst creditors of the judgment-debtor
who had attached the unencumbered property in question and could have realized their
judgment-debts by a sale of this property in execution and it would be inequitable and
contrary to justice that the judgment-debtor should be restored to this property without
making good to the auction-purchaser the moneys which have been applied for his
benefit.

17. It was argued that the remedy of the auction-purchasers was either to apply for a
certificate of sale of the unencumbered property or to obtain from the judgment-
creditors re-payment of the sums paid out to them under the orders of the Court. Their
Lordships cannot agree with either of these suggestions, and for the reasons stated by
the Judges of the High Court.

18. As regards the sums paid by the auction-purchasers to Gobardhan Das to clear off
the bonds charged on the property they had intended to purchase, their Lordships are
in agreement with the decision of the High Court that this payment stands on a
different footing from the deposit of the purchase-money. It was an optional payment,
made without any order of the Court, and as it entitled them to stand in the shoes of
Gobhardhan Das as holders of the bonds, it entails no hardship ; but however that may
be, these payments cannot be made a condition of restoration to the judgment-debtors.

19. A question was raised before this Board as to whether the "manse profits" on the
one hand, and " the deposit" on the other, should under the order of the High Court
carry interest. The order is silent upon this point, but in their Lordships' opinion, the
equities of the case will be met by not allowing interest in this case,

20. There only remains the question as to the rights of Chaturi Ram who was one of
the auction purchasers at the said sale of the ½ anna share of the mahal. It is alleged
that he had died pending the hearing of the appeal before the Privy Council and that as
his heir or personal representative was not brought upon the record, the order on the
advice of their Lordships in the Privy Council cannot affect the ½ anna share in his
possession or that of his heir.

21. Their Lordships have no evidence before them of the facts alleged and no claim
was presented on behalf of the said Chaturi Ram or his representative and they are of
opinion that under the circumstances, the order in this case should be made without
prejudice to the rights, if any, of Chaturi Ram, or if he is deceased, of his heir or legal
personal representative.

22. Their Lordships are of opinion that the order of the High Court, subject to the
modification last hereinbefore mentioned, should be affirmed, and that the appeal and
cross-appeal should be dismissed with costs including in the case of the appeal, the
costs of the petition to add certain documents to those set out in the record as
originally printed, and they will humbly advise His Majesty accordingly.

Appeal and cross-appeal dismissed.

Cases Referred.

1 1914) 41 Cal 590 : 21 IC 936 : 41 IA 38 (PC).

2 (1871) 3 PC 465 : 19 WR 449 : 7 Moore PC (NS) 314 : 17 ER 120 : 40 LJ PC 1.