P L D 1957 Dacca 198 (PLP)

The learned Advocate appearing for the petitioner has raised two points before this Court. He has, firstly, con tended that the learned Subordinate Judge is clearly in error in holding that the case is governed by section 181 of the Limitation Act, and the proper Article applicable to this case should be Article 166 of his Limitation Act. His second contention is that the finding of the learned Subordinate Judge that the case comes under section 18 of the Limitation Act is not sufficient. Mr. Bhattacharjee for the respondents, however, con tends that this is a case covered by section 181 of the Limitation Act and there was a clear finding on the facts that the judgment‑debtors were quite entitled to get the benefit of section 181 of the Limitation Act. Article 181 of the Limitation Act provides limitation for three years in case of application for which no period of limitation is provided elsewhere in the schedule or by section 48, Civil P. C., 1908. Article 166 provides limitation) for 30 days under the Civil P. C. to set aside the sale in execution of a decree including any application by a judg ment‑debtor and the limitation runs from the date of the sale. The wordings "including any such application by judgment‑debtor" were inserted by the Indian Limitation (Amendment) Act, 1927, which came into force on the 1st January 1928. The amendment of Article 166 by the Act of 1927 gave effect to the recommendation of the Civil Justice Committee that Article 166 should be amended so as to make it clear that it applies also to application by a judgment‑debtor where judgment‑debtor himself applies for setting aside the sale under section 47, Civil P. C. But evidently, if the execution sale was a nullity, namely, mad without jurisdiction or is void ab initio Article 166 has no application and Article 181 would come in. Now this as principle of law has been accepted in different High Courts, I shall refer in this connection the decision in the case of Haripada Haider v. Barada Prasad Roy Choudhury and others (I L R 51 Cal. 1014). In this case Pearson and Graham, JJ. held "all application whether under section 47 or Order XXI, rule 90, Code of Civil Procedure, are governed by 30 days period of limitation provided by Article 166 of the 1st Schedule of the Limitation Act, 1908. Article 166 of the 1st schedule of the present Limitation Act is so much wider than the corres ponding provisions of the former Act and is quite general in terms governing all applications to have an execution sale set aside." Their Lordships in that case distinguished the cases of Chand Moni Dasya v. Santo Moni Dasya (1 C W N 534) and Chandrana Rai v. Maharaja of Dumraon (38 Ind. Cas 209). It was decided in those cases that under the Act as it formerly stood before the passing of the present Limitation Act, Article 166 was restricted to a particular class of applications. In the case of Ramsagor Singh v. Ramajcdhya Matho (I L R 21 Pat. 774), there was a sale in execution of a decree for payment of money. The objection of the judgment debtor was that he was an agriculturist and by means of the provisions contained in section 60 (c) of the Civil P. C., 1908, a house which had been attached was not liable to be sold. Their Lordships Mr. Justice Meredith and Mr. Justice Shearer held: "That although the question that arose between the parties might be one falling within the purview of section 47 of the Code of Civil Procedure, 1908, the application was one to have the sale set aside, and, that being so Article 166 of the Limitation Act, 1908, was necessarily applicable". In the case of Nirode Kali Roy Choudhury and another v. Rai Harendra Nath Chaudhury and another (42 C W N 87), Nasim Ali and Mukherjee, JJ. were also of opinion that Article 166 of the Limitation Act applies to applications for setting aside sales when the sale is void-able and not void. The same principle was also accepted in the case of Bhaichand Kirparom and another v. Ranchhoddas Manchharam and others (I L R 45 Bom. 174). At page 187 his Lordship Shah observed: "I am therefore, of opinion that the present suit must be treated as an application under section 47 to set aside a sale and that it is barred under Article 166, because it has not been made within 30 days from the date of the sale." Order XXI, rule 72, clause (3), Civil P. C. lays down: "that where a decree‑holder purchases himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment‑debtor or any other persons whose interests are affected by the sale; by order set aside the sale; and the costs of such applica tion and order, and any deficiency of price which may happen on the re‑sale and all expenses attending it, shall be paid by the decree‑holder". It follows, therefore, that where the decree‑holder makes a purchase without the permission of the Court the sale is not absolutely void but only void-able. The learned Advocate for the respondent relies on the follow ing cases. Umapati Mukherjee v. Sheikh Soleman (I L R 54 Ca1. 419), Manmatha Nath Ghose v. Lachmi Debi (I L R 55 Ca1. 96) and Rajibnath v. Chota Nagpur B. Association, Ltd. (I L R 27 Pat. 399). Now in the case Umapati Mukherjee v. Sheikh Soleman, Duval and Miter, JJ. held:‑ "The title of a purchaser in execution of a mortgage decree can be questioned only by a petition in the execu tion proceedings under section 47 of the Code of Civil Procedure. The Article applicable for application under section 47 of the Code of Civil Procedure is Article 181 of schedule 1 of the Indian Limitation Act, which gives three years from the date when the right to apply accrues. The right to apply accrues at the date of the sale." This was a case, which was decided before the amendment of the Limitation Act and related to a mortgage sale. There was a question whether the disputed lands were or were not included in the mortgage decree or sale. The plaintiff's case was that plot No. 2 of the plaint lands belonged to the widow of Milan and that the other plots of the plaint were not covered by the mortgage executed by the sons of Milan in favour of the father of defendant No. 1 and were in possession or the plaintiffs even after delivery of possession to defendant No.

1. But defendants Nos. 2 to 4 forcibly took possession of them alleging that they took settlement of them from defendant No.

1. The defence of the defendants was that the disputed lands were mortgaged by the sons of Milan Sheikh and were sold in execution of the mortgage decree and purchased by defendant No.

1. Defendants denied the title of the widow and daughter of Milan Sheikh in plots Nos. 1 and 3 and they alleged that the sons of Milan got the disputed lands (plots Nos. 1, 2 and 3) on partition and the widow and daughters of Milan got other lands. The Munsif held that plots Nos. 1 and 3 did not belong to the widow and daughters of Milan and further held that the disputed lands were not included in the mort gage executed by the sons of Milan, who were plaintiffs Nos.1 to 3 in this suit and respondents before the High Court. The defendants preferred an appeal to the District Judge who confirmed the decision of the Munsif holding that the lands decreed were outside the mortgage. So, from the facts it appears that that was altogether a different case and the facts are clearly distinguishable from the present one. This case has no application to the present case. The case reported in Manmatha Nath Ghose v. Lachmi Debi mentioned above, has also no application to the facts .of the pre sent case, as that was a case where the sale was held void and it was not necessary to have the sale set aside under section 47, Civil P. C. In the special circumstances residuary Art. 181 of the Limitation Act was applied to such cases and not Article

166. The next case relied on by the learned Advocate for the respondents, is the case of Rajibnath v. Chota Nagpur B. Association, Ltd. mentioned above. The facts of that case are also quite distinguishable from the facts of the present case. In that case also the question was whether a raiyati holding was or was not liable to be sold on account of statutory prohibition and the suit was for recovery of possession on the ground that the sale was void and did not pass any title to the auction‑purchaser. So, it appears on the wordings of the Article 166 as amended by Act of 1927, that Article 166 and not Article 181 is applicable to the facts of the present case. The learned Subordinate Judge was clearly wrong in finding that Article 181 of the Limitation Act applied to the facts of the present case. The learned advocate for the respondents next contended that even if Article 166 was applicable here, the position of his clients was saved by section 18 of the Limitation Act. The sale was held on the 7th August 1950, and the petitioners got the information regarding the fraudulent sale on the 27th December 1950 and the application for setting aside the sale was filed on 8th January 1951. The learn Advocate for the appellant, contends that the finding of a Subordinate Judge regarding the application of section 18 of the Limitation Act is not sufficient. Further it is incumbent on the judgment debtors to prove that there was a fraud subsequent to the sale and that the judgment‑debtors were kept out of the knowledge of the date of the sale on account of the fraud of the decree‑holder. In this connection the learned Advocate for the appellant has relied on the case of Mahipati Haldar v. Atul Krishna Moitra and others (53 C W N 587). In this case Mukherjee, J. held: "Section 18 of the Limitation Act can be availed of to extend the period of limitation of an application under Order XXI, Rule 90 of the Civil Procedure Code, where fraud is proved to have been committed by the decree‑holder though the auction‑purchaser, who was a stranger, was not a party or accessory to the fraud. "The fraud that can be alleged or proved against an auction‑purchaser must be a fraud subsequent to the sale, but, as has been held, for invoking the benefit of section 18 of the Limitation Act, it is necessary to prove fraud, subsequent to the sale." It is clear that this case does not at all help the learned Advocate for the appellant. That was a case of auction purchase by a third party and necessarily his Lordships, held that the fraud that can be alleged or proved against him must be a fraud subsequent to the ale. His Lordship, however, observed at page 589: "But it has been held by a series of decisions of this Court as well as of the Privy Council that for invoking the benefit of section 18, Limitation Act, it is not necessary to prove fraud subsequent to the sale. If there is any P fraud antecedent to the sale, its influence must be deemed to continue, till the party affected has clear knowledge of it." This is exactly the contention of the learned Advocate for the respondents. The other case cited by the learned Advocate for the appellant is the case of Mihirlal alias Mihirlal Dig v. Panchkari Santra and others (54 C W N 697). This is also a case where the auction‑purchaser was a third party. Their Lordships Das and Das Gupta, JJ. held: On a proper interpretation of the unambiguous language of section 18 of the Indian Limitation Act, the judgment debtor is without any remedy in the cases where, by the fraud of the decree‑holder, the judgment‑debtor is totally kept out of knowledge of the sale and the property has been sold for a nominal price, but the auction‑purchaser is not a party to the fraud or accessory thereto. The learned Advocate for the respondents cited several decisions which clearly support his contention that in suitable cases fraud antecedent to the sale may be taken into consideration and its inference continues till the judgment debtor is aware of the fraud in the sale. The case cited are the cases of Narayan Sahu and others v. Mohanth Damodar Das (16 C W N 894), Arjun Das v. Junendra Nath Basu Malick (18 C W N 1266), Jatindra Mohan Rai Chaudhari v. Brjendra Kumar Dutta Munshi (19 C W N 533), Ramesh Chandra Patranabis v. Bir jasundari Gupta (32 C W N 518), Bhusan Mani Dasi v. Profulla Kristo Deb (I L R 48 Cal. 119) and Birman Chandra Dutta v. Promotha Nath Ghose (I L R 49 Cal. 877). In the present case there is a clear finding by the learned Munsif that no notice under Order XXI, Rule 22, Civil P. C., was served and the sale proclamation was suppressed and further the decree‑holder grossly understated the value of the properties in question and that the land has been sold at an absurdly low price. The judgment‑debtors' story is that that on account of the fraudulent suppression of the notice and sale proclamation they were kept out of any knowledge regarding the sale. It was only on the 27th December 1950, when they first came to know about the fraud and the sale from one Abinash and one Rahim. These two persons, namely, Abinash and Rahim were not examined by the judgment‑debtors and in their absence the learned Munsif declined to believe the uncorroborated evidence of the judgment‑debtors which was not, according to him, sufficient to enable the judgment‑debtors to get the benefit of section 18 of the Limitation Act. The appellate Court, however, came to a finding that it was in evidence that the processes were fraudulently suppressed and that the decree‑holder himself bid at the sale without any permission from the Court and there were material irregularities and fraud in publishing and conducting the sale. The lower appellate Court further held that the petitioner was entitled to seek relief under section 18 of the Limitation Act. The decree‑holder started with a set of motive that the property was grossly undervalued, evidently, with a view to scare away the intending bidders, processes were fraudulently suppressed and thereafter he himself purchased the property without even taking any permission from the Court as required under the provisions of the Civil Procedure Code. For all these circumstances the lower appellate Court was of opinion that the appellant was entitled to get relief under section 18 of the Limitation Act. Of course, it must be frankly admitted that the finding of the appellate Court was not full and elaborate but in my opinion it was quite sufficient for the purpose of the case. In the case of Narayan Sahu and others v. Damodar Das, Jenkins, C. J. held: "That the fraud which it is necessary to prove to bring the case within section 18 of the Limitation Act may have occurred prior to the sale‑for fraud, at any rate of the nature generally employed in bringing about an illegal sale, is a continuing influence and until that influence ends, it retains it power of mischief." His Lordship referred to the earlier Privy Council decision in the case of Rahimbhoy Habibbhoy v. Turner (I L R 17 Bom. 431), in support of their conclusion. In that Privy Council case it is held that when a man has committed fraud and has got property thereby, it is for him to show that the person injured by the fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud at a time which is too remote to allow him to bring the suit. In this case also it is not the case of the decree‑holder that the judgment‑debtors were aware of the sale at any date previous to the 27th December 1950. The learned Munsif might not have been satisfied from the uncorroborated evidence of the judgment‑debtor but the appellate Court on a consideration of the evidence of the judgment‑debtor and from the facts and circumstances was fully satisfied about the application of section 18 of the Limitation Act and the decree‑holder is not entitled to question that finding before this Court. The same view was taken in the case of Arjan Das v. Gunendra Nath Basu Mallick, and this principle was also accepted in the case of Jatindra Mohan Chaudhury v. Brojendra Kumar Dutta Munshi. Their Lordships in that case observed: "If they were, by means of fraud, kept from the knowledge of the sale, they were necessarily kept from the knowledge of their right to have the sale set aside. No doubt, the decree‑holders may possibly establish that in spite of the alleged fraudulent suppression of the processes, the judgment debtors were aware of the sale and consequently of their right to have the sale vacated. But if it is established that by means of fraud the judgment‑debtors were kept in ignorance of fact of sale of their property; it is difficult to appreciate how the position can be maintained that they have not been kept from the knowledge of their right to have the sale set aside on the ground of fraud. We are consequently of opinion that upon a plain reading of section 18 of the Limitation Act, it is not essential to prove that there has been fraud subsequent to the date of sale." In the case of Ramesh Chandra Patranabish v. Birajsuandari Gupta, an objection was taken to the following finding of the Subordinate Judge: "I am satisfied from the petitioner's evidence that she had no knowledge of the sale until there was delivery of possession to the auction‑purchaser. I find accordingly that the application is not barred by limitation." It was argued before their Lordships that it was on account of the fraud of the decree‑holder or the auction‑purchaser that the respondents were kept out of the knowledge of the sale. Suhrawardy, J. observed: "No doubt, the Subordinate Judge has not said in so many words that it was due to the fraud of the decree‑holders that the respondents were kept out of the knowledge of the sale. But reading the judgment of the learned Judge as a whole one can have no doubt that that was what he meant to find." His Lordship also referred to the Privy Council decision in the Rahimbhoy Habibbhoy v. Turner, referred to above, where their Lordships of the Judicial Committee in essence held, "that where fraud is committed by any party it lies upon him to show that the other party had a clear and definite knowledge of the facts constituting fraud at a date beyond the statutory period". In the case of Bhusan Mani Dasi v. Profulla Kristo Deb, their Lordships Teunon and Chaudhuri, JJ., also held: "In a case to set aside sale under Order XXI, rule 90, Civil P. C., the applicant must have knowledge not merely of t11c; factum of the sale but a clear and definite knowledge of the facts which constitute the fraud before time can run against him or her. "When by a fraud involving suppression of processes and submission of false returns, the applicant is kept out of knowledge of the sale of the property, such fraud must be held to have a continuing influence. Indeed in such a ease it is for the other side to show that the injured party had clear and definite knowledge of the facts which constitute the fraud at a time from which taken as a starting point the suit is barred by limitation." In the case of Biman Chandra Datta v. Promotha Nath Ghose, their Lordships Mukherjee, Walmsley and Pearson, JJ. Held: "Where the plaintiff had been kept from knowledge, by the defendant of the circumstances constituting the fraud, the plaintiff can rely upon section 18, to escape from the bar of limitation." So, having regard to the above decisions cited by the learned Advocate for the respondents, which I have already discussed, I find that the appellant has no cause for any grievance against the decision of the appellate Court and the finding is quite sufficient in the circumstances of the case that although the application is governed by Article 166 the judgment‑debtors are saved by the provisions of section 18 of the Limitation Act. In the result, this appeal is dismissed with costs. K. B. A. Appeal dismissed.