1980 PLP 875 (CLC)

Date of bearing : 10th September, 1979. The Lora Transport Co-operative Society (hereinafter referred to as the decree-holder) was under liquidation and it obtained a money decree for a total sum of Rs. 2,040 against Muhammad Afzal Khan, deceased (hereinafter referred to as the judgment-debtor) on 18-8-1966. In execu tion of the decree eight shops belonging to the judgment-debtor, situate in Bazar Loro were put to auction and the highest bid of Rs. 2,155 was given by Abdullah Jan Khan (hereinafter referred to as the auction-purchaser). The execution proceedings continued and the sale was con firmed in favour of the auction-purchaser on 17-7-1967 on which date the executing Court ordered the issuance of requisite certificate.

2. On 27-7-1967 the judgment-debtor sued the decree-holder and the auction-purchaser for a declaration that the sale of the eight shops, belonging to him, was brought out by fraud and collusion between the judgment-debtor and the decree-holder. On 26-6-1968 this suit was with drawn under rule 1 of Order XXIII of the First Schedule to the Code of Civil Procedure (Act V of 1908) (hereinafter referred to as the Code) with permission to bring a fresh suit. A day before. i.e. on 25-6-1968 the judgment-debtor filed an application under rule 90 of Order XXI of the said Schedule to the Code requesting the executing Court to set aside the sale on the ground of material irregularity and fraud in publishing the proclamation and conducting the sale. The application was dis missed by the executing Court by its order dated 13-6-1969. It may be pointed out that the judgment-debtor offered to deposit the entire decretal amount with the Court and with its permission the amount was actually deposited. The judgment-debtor approached the District Judge in appeal from the order of the executing Court and the learned District Judge, by his order dated 29-9-1970 accepted the appeal and set aside the order of the executing Court as well as the sale, holding it to be void on account of having been obtained by fraud and having been conducted with material illegality and irregularity. In arriving at this conclusion the learned District Judge, in his elaborating judgment, found that on evidence on record and the circumstances of the case it had been proved that the auction and sale were carried out by fraud without the knowledge of the judgment-debtor and that the decree-holder and the auction-purchaser were in collusion in getting the auction finalized. While discussing the evidence in detail he pointed out that all the persons. who participated in the auction were interested inasmuch as they were either related to the auction-purchaser or were inimical towards the judgment-debtor. He further observed that the failure of the decree holder to produce the bailiff, who conducted the sale, raises a presump tion that had the bailiff been produced, his evidence would have been unfavourable to the decree-holder and the auction-purchaser. This conclusion was arrived at on the principle embodied in illustration (g) to section 114 of the Evidence Act, 1872 (I of 1872).

3. The auction-purchaser and the decree-holder had urged before the learned District Judge that the application under rule 90 ibid was barred by time inasmuch as it was filed beyond the period prescribed under Article 166 of the First Schedule to the Limitation Act, 1908 (IX of 1908). This plea was rejected by the learned District Judge on the ground that firstly the decree having been obtained by fraud the question of limitation did not arise and secondly that under section 14 of Act IX of 1908 the time spent by the judgment-debtor in prosecuting the civil suit had to be excluded because the suit was being prosecuted with due diligence in good faith though the Court had no jurisdiction to entertain it.

4. From the aforesaid order of the learned District Judge; Mst. Jamila Begum, who was one of the heirs of the judgment-debtor who had died during the pendency of appeal before the District Judge and whose name and the names of the other heirs of the judgment-debtor had been duly brought on record, filed this second appeal under section 100 of the Code with the prayer that the order of the learned District Judge be set aside and that of the executing Court restored.

5. Mr. Fazal Hussain, learned counsel for the appellant, first of all. argued that the conclusion of the learned District Judge that the auction was conducted with material irregularity and illegality and was finalized with fraud by collusion between the decree-holder and the auction-purchaser is not based on correct appreciation of the evidence on record. In this contention there is no substance. I have carefully read the judgment of the learned District Judge and have found that he has examined the evidence from record in detail and has discussed A each aspect thereof. Even otherwise the finding sought to be challenged is a finding of fact and cannot be interfered with in second appeal under section 100 of the Code. The language of section 100 ibid is clear enough and there are numerous reported cases supporting the above view. 1n the case of Malik Waheed Bakhsh v. Ch. Muhammad Shafi (P L D 1976 Lah.1069) it was held that conclusion arrived at by lower appellate Court amount ing to finding of fact, after discussing the merits and demerits of the evidence produced by the parties, cannot be interfered with in second appeal under section 100 of the Code. Similarly in the case of Mst. Choori v. Ghulam Hussain (1978 S C M R 404) the Supreme Court held that where the District Judge bases his decision on proper material on record and draws correct inference therefrom and reverses the finding of the trial Court on crucial issue involved in the case the High Court cannot inter fere with such finding. Again in the case of Ghulam Muhammad v. Muhammad Hussain and another (P L D 1978 Lah. 478) it was observed that where decision arrived at is based on evidence on record and proper reasoning is given, the mere misappreciation of evidence without misreading or misinterpret ing it cannot invite the jurisdiction of the High Court to interfere under section 100 of the Code. In the same case it was held that where the finding of the trial Court is upset by the first appellate Court without any substantial error, the High Court cannot interfere with in second appeal. Similarly in the case of Beg Muhammad v. Mst. Iqbal Begum (P L D 1976 Kar. 888) it was laid down that finding of fact arrived at by the lower Court and based on evidence on record is not liable to be interfered with in second appeal,

6. In view of the above discussion and on the authority of the cases, referred to above, and several other authoritie3, which have been reported on the point, I am of the view that the finding of the learned District Judge that the auction-purchaser got the certificate of sale by fraud and there was collusion between him and the decree-holder cannot be interfered with has attained finality and cannot be set aside it) second appeal under section 100 of the Code,

7. After reaching the above conclusion it is not necessary to discuss several authorities on the point relied upon by the learned counsel for the appellant that failure to publish sale proclamation under rule 54(2) of Order XXI of the First Schedule to the Code is not an illegality but is an irregularity that can be waived by the judgment-debtor Nripati Nath Bhattcharjee v. Jatindra Kumar Das (A I R 1926 Cal. 577) that the boundaries of the property to be sold even if given incorrectly would not invalidate the sale when everybody who participated in the sale recognized it Abdul Salam v. Joti Parshad (A I R 1933 Lah. 1031) ; that burden of proving fraud is on the party alleging it and it can be proved only by a convincing evidence particularly where a long period has expired and valuable rights have accrued to the other side Ahsan Ali v. District Judge (P L D 1969 S C 167) ; that mere misdescription does not invalidate sale if parties concerned knew the facts Tikaram v. Narayan (A I R 1926 Nag. 246) and that where the lower appellate Court reverses the finding of the trial Court on erroneous reasoning and incorrect exposition of law by ignoring evidence on record, the High Court cannot interfere under section 100 of the Code Malik Muhammad Ishaque v. Mirza Almas Ali Beg (P L D 1969 Lah. 764).

8. The learned counsel for the appellant then argued that notwith standing the fact that the conclusion arrived at by the learned lower appellate Court that the auction was conducted with fraud by collusion between the interested parties, the application under rule 90 of Order XXI of the Code is barred by time under Article 166 of the First Schedule to Act IX of 1908 which provides a period of thirty days from the date of sale to set aside the sale in execution of a decree. He contended that the application was filed long after the expiry of thirty days from the date of sale and, therefore, the learned first appellate Court should have dismissed the appeal on this ground. The learned District Judge has given concession to the judgment-debtor under section 14 of Act IX of 1908 under which the time spent in prosecuting the civil suit for setting aside the sale was excluded. The learned counsel for the appellant con tends that there being no application under section 14 ibid by the judg ment-debtor for excluding the time so spent, the learned lower appellate Court could not itself raise the issue and decide it against the auction purchaser. In this respect he referred to the case of Muhammad Jan v. Suleman (P L D 1968 Pesh 181) wherein it was held that where no application was given for condoning the delay under section 14 of the Limitation Act, the delay could not be condoned and the matter had to be held as time barred. 9. 1 have gone through the application of the judgment-debtor made under rule 90 of Order XXI of the First Schedule to the Code and find that there-was no request for condoning the delay under section 14 of Act IX of 1908 nor in the application the condonation was claimed under the said provision. However, in appeal before the lower appellate Court in para. 4 the judgment-debtor did mention that the leaned executing Court was bound to exclude the time spent in prosecuting the civil suit which was subsequently withdrawn. The learned lower appellate Court. without examining the original application, gave the benefit of section 14 C ibid to the appellant as the concession had been claimed in the grounds of appeal. In my opinion this was an erroneous action inasmuch as if a plea, which is based on mixed questions of, law and fact, is not taken, in the first instance, it cannot be taken at the appellate stage. To seek indulgence of the Court under subsection (2) of section 14 of Act IX of 1908 following conditions are to be satisfied :-- (a) The applicant has been prosecuting another civil proceedings in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. (b) These proceedings were against the same patty, (c) The proceedings are prosecuted in good faith. As far as (a) and (b) are concerned the conditions are satisfied but as far as (c) is concerned it is a pure question of fact and such a question cannot be taken in appeal if it has not been taken in the first instance. p The learned lower appellate Court, therefore, erred in law in entertain ing the plea taken for the first time before it and deciding it in favour of the judgment-debtor. This conclusion would have been sufficient to dispose of the appeal but since the learned counsel for both the parties have relied on several authorities on some other material points 1 consider it appropriate to discuss them also.

10. As far as the application of Article 166 of the First Schedule to Act IX of 1908 is concerned the learned counsel for the appellant as well as the learned counsel for the respondent are not at variance and they admit that for filing an application under rule. 90 of Order XXIII of the First Schedule to the Code the said Article is applicable. In support of this view reliance has been placed by the appellant's counsel on Ramdhuri Chowdhuri v. Deonandhan Prasad Singh (A I R 1922 Pat. 507) which says down that an application for setting aside a sale in execution of a decree is governed by Article 166 even though it is based on the ground that sale was effected through fraud. Another authority on the point is T. K. V. Pararnasiva Thevar v. Pulukaruppa Thevar (A I R 1924 Mad. 137) wherein it was held that Article 166 applies to every application to set aside a sale whether for illegality or irregularity. Likewise in the case reported as Das Narayan Singh v. Mir Muhammad Yusuf (A I R 1921 Pat. 145), the applicability of Article 166 ibid and no other provision was accepted by the Court. 1 The learned counsel for the respondent has renea on the case or Hussain Bakhsh v. Settlement Commissioner (P L D 1969 Lah. 1039) wherein it was held that if an order is without jurisdiction and void, then it need not be formally set aside, and no question would, therefore, arise for holding that the matter cannot be considered on merits on account of any bar of limitation. This authority is, however, not relevant inasmuch as the order confirming the auction; which has been impugned, is neither with out jurisdiction nor it is void. It is an order which is voidable at the instance of the judgment-debtor. In the case of Zahoor Ahmad v. Mahmud Ali (P L D 1977 Lah. 1377) it was observed that an order obtained by fraud is not void but only voidable. In reaching the conclusion reliance was placed on the case of Chief Settlement Commissioner v. Raja Fazil Khan (P L D 1975 S C 331) wherein the following observations were made :- "The first question which arises in this connection is whether an order obtained by practising fraud on the Court, Tribunal or authority concerned is a void order or only voidable-. We are in respectful agreement with the view expressed by Waheeduddin Ahmad, .T., in the case of Ali Igtidar Shah Dara P L D 1964 Lah. 274 that an order: obtained by fraud is not void, but only voidable. It remains operative as long as it is not set aside, rescinded, or recalled by a competent authority in proper proceedings. "While it is true, as has been so often stated that fraud vitiates all proceedings, it must nevertheless, be borne in mind that alle gations of fraud generally raise mixed questions of law and fact which can only be established in an elaborate inquiry. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it. As authority for this view, reference be made to Dabendra Nath Dutt v. Administrator-General of Bengal 35 1 A 109 ; Hewan v. Shelley 2 Ch. D. 13 ; Fazluddin v. Khetra Ghoria A I R 1926 Cal. 167 ; Ambikamoni Dasi v. Khettra Ghosia 30 C W N 59 ; Mst. Siraj Fatima v. Mahmood Ali A I R 1932 All. 293 ; Bishunath Towari v. Mst. Mirchi A I R 1955 Pat. 66 ; Ahmad Khan v, Custodian o! Evacuee Property P L D 1963 ICar, 450 and Pakistan v. R. S. Roapchand P L D 1967 S C 479," The learned counsel for the respondent referred to the case of Syed Mahmud Alam v. Syed Mehdi Hussain (P L D 1970 Lah. 6). In this case it was held that when an order appealed against is found to be a nullity the appellate authority can entertain and decide on merits even a time-barred appeal against such order. In this decision the cases of Hatim Ali V. Alst. Zulekhabibi (P L D 1904 Kar. 399) and Muhammad Azeem v. Muhammad Nawaz (P L D 1961 Lah. 137) were dissented from. These cases have no relevancy inasmuch as the impugned order, on the basis of the Supreme Court decision in the case of Chief Settlement Commissioner v. Raja Fazil Khan referred to above, confirming the sale is not a nullity but is a voidable order. The learned counsel for the respondent also relied on the case of Malik Umar Hayat Tiwana v. Malikani Sahibzadi Tiwana (P L D 1978 Lah. 1253) wherein it is held that fraud vitiates all proceedings and if proved renders decree null and void. There is no dispute to this proposition. As already observed a decree based on fraud is voidable at the instance of the person affected thereby and can be held so if challenged in a proper manner. In the present case the appellant challenged the impugned order after the period of limitation and as held in so many cases the law of limitation has to be construed strictly. The judgment-debtor did not raise the plea before the Court in the first instance that the time limit for his application comes under the concession provided for in section 14 of Act IX of 1908. The order was voidable at his instance and he having not knocked the doors of a proper forum in the prescribed period of limitation the order passed, which affected him, cannot be set aside after the expiry of the period of limitation.

12. Another authority in respect of the stand of the appellant is Syed Sajid Ali v. Syed Wajid Ali (P L D 1975 B J 29) which lays down that question of limitation could not he ignored even if the impugned order be termed as a nullity and that the time starts running from date of knowledge.

13. In view of what I have said above I am of the firm opinion that even though the first appellate Court has held that the order was obtained by fraud, the order was voidable at the instance of the judgment debtor and the proper course for him was to challenge the impugned order within the period of limitation provided for under Article 166 of the Limitation Act IX of 1908. He did not do so but came to the proper forum long after the expiry of the period of limitation. His prayer for excluding the period spent in prosecuting the civil suit under section 14 of Act 1X of 1908 was not made to the Court of the first instance and the learned District Judge had erred in law in entertaining that question which was purely a question of fact at the appellate stage. The application for setting aside the sale filed by the judgment-debtor whose successor-in-interest is now the appellant before this Court was barred by time and the concession under section 14 of Act 1X of 1908 is not available to her for the reasons already stated.

14. In view of the above finding I accept this appeal, set aside the order of the first appellate Court and restore that of the executing Court. The sale confirmed in favour of the decree-holder by the executing Court shall stand confirmed.

15. Since the questions involved were not free from complication I leave the parties to bear their own costs. S. A. H. Appeal accepted.