P L D 1961 Dacca 589 (PLP)

This Rule was issued against the order passed by the Subordi nate Judge, 2nd Court, Chittagong, in Miscellaneous Appeal No. 102 of 1959 setting aside the order of Munsif, North Raozan, in Miscellaneous Case No. 184 of 1958.

2. In execution of the decree passed in other Class Suit No. 182 of 1956, the decree‑holder started other class execution Case No. 122 of 1958 in the Munsif's Court, North Raozan, for realisation of costs against the judgment‑debtor Ruhul Amin Chowdhury and 8 others. In execution of the decree, 4 lots of properties belonging to judgment‑debtor Ruhul Amin Chowdhury only were advertised for sale. Oat of the 4 lots of properties, tote property of lot No. 3 was put to sale on 10‑1‑53 and was pur chased by decree‑holder Nur Ahmad Chowdhury for Rs. 55‑9‑

0. The sale was confirmed on 28‑2‑

53. Delivery of possession through Court is alleged to have been taken on 16‑10‑

53. On 3‑I 1‑58, the judgment‑debtor Ruhal Amin Chowdhery filed an appli cation under Order XXI, rule 90 of the Code of Civil Procedure for setting aside the sale on the grounds that there were fraud and material irregularity in the publication and conduct of the sale and that he suffered substantial loss due to the fraudulent and irregular sale. It was further alleged that due to the fraud of the decree‑holder‑auction‑purchaser, he was kept in ignorance of the sale and that he came to know of it only on 3 ‑9‑

58. The appli cation to set aside the sale was accordingly filed on the re‑opening of the Court on 30‑11‑58 after the Civil Court vacation.

3. The decree holder‑auction‑purchaser opposed the applica tion raising the plea that there was no fraud or material irregularity in the publication and conduct of the sale and that t11e judgment -debtor suffered no loss due to the sale. It was further alleged that the auction‑purchaser has been in possession of the land from the day of delivery of possession and that the application was barred by limitation.

4. The learned Munsif held that there was no fraud or material irregularity in the application and conduct of the sale ; that the judgment‑debtor suffered no injury and that the, applica tion was barred by limitation. On appeal, the learned Subordi nate Judge held that there were fraud and material irregularity in the publication and conduct of the sale ; that the judgment‑debtor suffered substantial loss due to the fraudulent and irregular sale and that as the application was filed within time from the date of his knowledge, it was not barred by limitation. The learned Subordinate Judge accordingly set aside the sale after reversing the order of the learned Munsif. It is against 'this order that the decree‑holder‑auction‑purchaser has moved this Court in its revisional jurisdiction under section 115 of the Code of Civil Procedure.

5. The first point pressed on behalf of decree‑holder‑auction purchaser is that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally and with material irregularity, as he made an erroneous approach in dealing with the evidence in the case. It was submitted that the learned Subordinate Judge acted illegally and with material irregularity as he did not take into consideration the presumption created by the returns with regard to the different processes, and held from the evidence adduced on the side of the decree‑holder‑auction‑purchaser that processes were fraudulently suppressed though no Mokabila witnesses to any of the returns was examined by the judgment- debtor. It is not correct to say that judgment‑debtor did not examine any of the Mokabila witnesses to the returns Exh. C (2), is the return relating to delivery of possession. P. W. 5 Belayet Ali is one of the Mokabila witnesses to this return Exh. C (2). The learned Subordinate Judge discussed the evidence relating to the service of notice Exh. C (3) under Order XXI, rule 22 of the Code of Civil Procedure, notice under Order XXI, rule 54 of the Code of Civil Procedure, (Exh. C), notice relating to publication of sale proclamation (Exh. C‑4), notice under Order XXI, rule 66 of the Code of Civil Procedure about publication of sale proclamation (Exh. C‑1), delivery of possession (Exh. C‑2) and concluded that all processes were fraudulently suppressed and that no delivery of possession was taken. The learned Subordinate Judge had jurisdiction to discuss the evidence in the way he thought proper. After consideration of the evidence, he came to his conclusion. It cannot be said that there was any wrong approach by him in consideration of the evidence.

6. The second point urged is that the learned Subordinate Judge acted illegally and with material irregularity in shifting the onus upon the decree‑holder‑auction‑purchaser to prove that the judg ment‑debtor was aware of the sale within due period of limitation after holding that the grossly inadequate price of the property to be put up for sale was itself a fraud. The area of the case land is 42 acres equal to 1 kani, 1 gunda according to the local measure ment. The learned Subordinate Judge on consideration of the evidence held that the proper value of the case land would be Rs. 1,200 and that as the land was sold for Rs. 55‑9‑0 only, it caused injury to the opposite‑party to the extent of Rs. 1,

150. The learned Subordinate Judge held that as in the sale proclama tion the land was valued at Rs. 25 only, it was definitely mislead ing and as a result the case land was sold at a grossly inadequate price: The learned Subordinate Judge further held that grossly inadequate price itself was fraud and, therefore, the judgment -debtor was entitled to the benefit of section 18 of the Limitation Act and it was for the decree‑holder‑auction‑purchaser to show that the judgment‑debtor had knowledge of the sale and that knowledge was within the prescribed period of limitation, i.e. within 30 days from the date of sale. It was argued that the learned Subordinate Judge acted illegally in holding that grossly inadequate price in the sale proclamation was itself a fraud. In support of this contention, reference was made to the case of Srimati Niroda Bala Deb Roy v. Monmohan Datta and others ((1954) 6 D L R 559). That was a case for setting aside a sale under section 174 (3) of the Bengal Tenancy Act. That sale took place on the 25th of March 1947, and the application to set aside the sale was filed on the 17th of January 1950. Following the case of Tuli Bibi and others v. Aziz Ahmad ((1950) 2 D L R 148), the learned Subordinate Judge in that case hold that as the property was sold at a shockingly low price, the sale was void and no question of limitation was arose. On revision against that order, the High Court held that shockingly low price does not make a sale void enabling the judgment‑debtor to skin over the bar of limitation. The learned Advocate for the decree‑holder -auction‑purchaser also referred to the decision of a Division Benck of this Court in the case of Nawati Sir K. G. M. Faroquie Kt. and others v. Karamat Ali and others ((1953) 5 D L R 273). In that case it was held that the decision in Tuli Bibi's case went beyond the scope of Privy Council decision in the case of Marundanayagam Pillai v. Munick avasakam Chittiar ((1953) 2 D L R 143), and should not be considered to have been correctly decided. It was held to that case that sale brought about by a carelessness of the Court as to valuation given by the decree -holder could not make the sale void and that the question of limitation would arise. The principle laid down in the cases reported in 5 D L R 273 and 6 D L R 559 have no bearing op the facts of the present case, because the learned Subordinate Judge in this case did not hold that due to gross under‑valuation given in the sale proclamation, the sale was void and that no question of limitation would arise. The learned Subordinate Judge held that gross inadequacy of price given deliberately in the sale pro clamation to mislead bidders was itself a fraud. The decree‑holder who being aware of the real value of the, land or having the means of ascertaining it, puts a grossly low value in the sale proclama tion, is guilty of fraud. On the other hand, if the decree‑holder gives a low valuation without any knowledge of the real value or without having means to ascertain it, there would be no fraud for the grossly low valuation given in the sale proclamation. In the case of Noabjan Bibi and others v. Chandra Kumar Roy Chow dhury ((1953) 5 D L R 43), it was held that gross under‑valuation of the property to be put up for sale amounts to fraud and that in such a case the judgment‑debtor is entitled to claim the benefit of section 18 of the Limitation Act and that where there was fraud in publish ing or conducting the sale, the onus would be shifted to the decree-holder‑auction‑purchaser to prove that the judgment‑debtor had knowledge of the sale and that knowledge was within the prescrib ed period of limitation. The learned Subordinate Judge also in this case expressed this view. In the case of Manmatha Nath Chakra varty and another v. Sachindra Kumar Chakravarty and another (59 C W N 1082), it has been laid down that if the decree‑holder knowing the real value of the land or having means of ascertaining it, gives logy valuation in the sale proclamation, that would be evidence of fraud

7. The learned Subordinate Judge not only held that grossly inadequate price in the sale proclamation was itself fraud but that there was fraudulent suppression of processes arid that the judg ment‑debtor suffered substantial loss due to the fraudulent sale. It was also found by the earned Subordinate Judge that the judg ment‑debtor was kept in ignorance of the sale due to the fraudulent suppression of processes and that the came to know of it on 30th day of September 1958. In the circumstances, the contention of the learned Advocate for the petitioner that the learned Subordi nate Judge acted illegally and with material irregularity cannot be accepted.

8. The third point pressed is that the learned Subordinate Judge acted illegally and with irregularity, as he did not take into consideration the evidence of O. P. Ws. Nos. 3 and 4 and decree -holder O. P. W. No.

2. The O. P. Ws. 3 and 4 are formal wit nesses. O. P. W. 3 is the process server relating to delivery of possession. He also proved the hand‑writing of another process server who wrote the return Exh. C‑

3. O. P. W. 4 the process server relating to the attachment Exh. C and also proved the hand‑writing of another process‑server who wrote the return Exh. C‑

3. O. P. W. 4 the process‑server relating to the attach ment Exh: C and also proved the hand‑writing of another process server who wrote the return Exh. C (4). Though the learned Subordinate Judge did not make mention of O. P. Ws. 3 and 4 in his judgment, he actually considered their evidence relating to Exhs. C, C (2), C (3) and C (4) in connection with which they deposed. So, it cannot be said that there was any material irregu larity for non‑discussion of their evidence.

9. It was argued that in spite of the evidence of decree -holder auction‑purchaser O. P. W. No. 2 to the effect that judg ment‑debtor was present in the Criminal Court on every day of the criminal case under section 144 of the Code of Criminal Procedure, the learned Subordinate Judge held that there was no evidence to show that the judgment‑debtor participated in the Criminal Court proceedings and that as such the learned Subordi nate Judge acted illegally and with material irregularity. Though the learned Munsif noted in his judgment that there was the evidence of O. P. W. 2 to the effect that the judgment‑debtor was present in Court on every day of the hearing of the Criminal Case under section 144 of the Code of Criminal Procedure, the deposi tion of O. P. W. 2 does not show any such statement. So, the question of non‑consideration of the evidence of O. P. W. 2 relating to the attendance of the judgment‑debtor in Court on every day in connection with the hearing of the criminal case does not arise. Conceding for the sake of argument that there was such a state ment, but that would not in any way improve the position of the decree‑holder auction‑purchaser, because from mere presence of the judgment‑debtor in Court while the criminal proceeding was going on, it cannot be concluded that he was aware of the sale. In para. 3 of the objection Exh. A filed by the decree‑holder auction‑purchaser in the case, there is a vague statement that he made auction‑purchase of some lands, but details were not given. As the sale certificate (Exh. D) and the copy of the writ of delivery of possession (Exh. E) do not contain the seal of the criminal Court, it follows that there were not filed in the criminal Court. In a case to have the sale set aside under Order XXI, rule 90 of the Civil Procedure Code on the ground of fraud in the publica tion and conduct of the sale, the judgment‑debtor must have knowledge not merely of the fact of sale but a clear and definite knowledge of the facts which constitute the fraud before time can run against him. It is not sufficient to know about some hints and clues which, if vigorously and actively followed up, might have led to a complete knowledge of the fraud. This is supported by the case of Bhusan Mani Dusi v. Profullo Kristo Deb (I L R 1948 Cal. 119) and the case of Biman Chandra Datta v. Promotha Nath Ghose (I L R 1949 Cal. 886). For the reasons stated above, it cannot be said that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally and with material irregularity in not considering the evidence of O. P. W.

2. There is, therefore, no ground to interfere with the order passed by the learned Subordinate Judge. The Rule is discharged with costs. N. H. Rule discharged.