Babu Lal vs Parem Kumari

Das, J.—On 27th April 1926 the appellant purchased the disputed properties for Rs. 8,000 in execution of his own decree as against the respondent. On 25th March 1927 the respondent, Rani Parem Kumari, applied for setting aside the sale under Order 21, Rule 90 of the Code. The application has succeeded and the learned Subordinate Judge has set aside the sale. The decree-holder-auction-purchaser appeals to this Court.

The first question which we have to consider is whether the respondent''s application was barred by limitation. The Indian Limitation Act prescribes a period of 30 days only from the date of the sale for an application to set aside a sale in execution of a decree; so that it is necessary in this ease for the applicant-respondent to make out a case u/s 18, Lim. Act, to enable the Court to deal with her application on merits.

The learned Subordinate Judge has in substance found that there was a fraudulent suppression of the relevant notices. But the learned advocate appearing on behalf of the decree-holder-appellant contends before us that there is no positive finding in the judgment of the learned Subordinate Judge on the question of fraud. I think Mr. Santa Prashad is technically right; but reading the whole judgment there is no doubt whatever that the learned Subordinate Judge did find as a fact that there was fraudulent suppression of sale-processes, ''she last three lines of his judgment run as follows:

If there has been fraudulent suppression of sale processes it is for the decree-holder to show when the judgment-debtor came to know -of the auction sale.

Previously he had said:

Inadequacy of price at the sale resulted from the fact that the sale processes were not served on the spot.

But still the criticizm remains that there is no direct finding as to the fraud; and having regard to this criticizm we have examined the evidence with great care. It is the case of the respondent that notice under Order 21, Rule 66 was served personally upon the respondent who, it must be remembered, is a if pardanashin lady of rank and position living in a castle at Allahabad. The notice on the face of it bears her signature; bat there is no proof of her signature except in the evidence of Babu Lal, the appellant. His evidence is so extraordinary that, in my opinion, it is quite impossible to believe it. He actually says that the

Rani came near the main entrance of the rooms where she lived and took the notice.

He proceeds to say as follows:

A carpet was spread and Rani sat on it. She sent for writing materials and presumably when the writing materials duly appeared she put her signature on the original notice and returned it to the decree holder. Kamaruddin, the peon is a little more cautious, He declines to say that he actually saw the Rani putting her signature on the notice but says "She signed from behind a door. The question is whether it is possible to believe the evidence of Babu Lal that the respondent, Parem Kumar, a lady of rank and position living in a castle came to the front door and actually took the notice from the hands of the decree-holder. In my opinion the learned Subordinate Judge was right in disbelieving this evidence. If this be so, then it is obvious that a gross fraud was perpetrated on the lady and that it is impossible to accept the case that the signature purporting to be the signature of the Rani on the notice under Order 21, Rule 66 of the Code is in fact her signature. When this is once established the case is brought within the decision of Sir Lawrence Jenkins in Naraijan Sahu v. Damodar Das 16 C.W.N. 894, In the course of his decision the late Chief Justice of the Calcutta High Court said as follows:

Fraud at any rate the class of fraud with which we are here concerned is a continuing influence and until that influence ends, it retains its power of mischief. And so, it was said in the case to which I have referred that when a man has committed fraud and has got property thereby, it is for him to say that the person injured by the fraud and suing to recover the property has had clear and definite knowledge of those facts which constituted the fraud at a time which is too remote to allow him to bring the suit.

The doctrine is stated in this passage with a clearness and precision to which it is impossible to take any objection. There was fraud at the outset and it is for the decree-holder to establish at what precise point of time the judgment-debtor had clear and definite knowledge of those facts which would entitle her to apply for setting aside the sale.

Mr. Santa Prashad contends that there is a conflict in the evidence as adduced on behalf of the petitioner on a material point that whereas Rani Parem Kumari says that she heard of the sale from Sheo Sagar Sinha; Sheo Sagar Sinha on the other hand says that he heard of the sale from the Rani. It may be mentioned that Sheo Sagar Sinha is the zarpeshgidar in possession of the properties. Now, the Rani does say that she heard of the sale frem Sheo Sagar Sinha. The evidence of Sheo Sagar Sinha is that a peon of his kat cherry gave him the information of the sale on 7th March 1927 when he was actually in Patna and that he informed the Rani on 18th March 1927 that the properties had been sold in execution of the decree obtained by the respondent. The whole of the evidence of Sheo Sagar leaves no doubt whatever that he heard of the sale from his peon and that it was he who gave in formation of the sale to the Rani.

But there is this passage in the evidonce of Sheo Sagar Sinha: I came to know of the sale from the Rani. It is this passage which encouraged a very strenuous. argument before us on the part of Mr. Santa Prashad that Sheo Sagar himself heard of the sale from the Rani. I have no doubt whatever that there is some error in recording the evidence of Sheo Sagar. We have to read the whole of the evidence of Sheo Sagar, and there is no room for doubt that according to him he heard of the sale from his peon and gave information of the sale to the Rani on 18th March. In my opinion there is enough in the evidence to establish that there was a contrivance on the part of the decree-holder which prevented the judgment-debtor from acquiring knowledge of the facts which would entitle her to apply under Order 21, Rule 90. That being so, it is impossible to say that a case u/s 18, Lim. Act, has not been made out. I hold, therefore, that the application was not barred by limitation.

Now, I come to the merits, and in my opinion there is little to be said, so far as the merits are concerned, in favour of the auction-purchaser-appellant. He purchased the properties for Rs. 8,000 and in the Court below he stated to the Court that he would not let the properties go even for Rs. 20,000. There is evidence, which the learned Subordinate Judge has accepted that the property is worth any thing between Rs. 75,000 and Rs. 80,000. According to the evidence of the patwari, who has precise information of all the facts connected with the disputed properties, the cash income of the disputed properties is Rs. 3,923 a year and there are 400 or 500 bighas of zirat lands. The plaintiff himself says, though on information off others, that the naqdi income is Rs. 3,000 a year and there are 200 bighas ''of zirat lands. On the cess valuation it appears the learned Subordinate Judge has come to the conclusion that the property must be worth between Rs. 75,000 and Rs. 80,000. There is no doubt at all that the property was sold at a gross undervalue.

Then there is the other question, whether notices in connexion with the execution sale were served in accordance with law. I have already dealt with the service of notice under Order 21 Rule 66, and in regard to other matters it is not necessary to say anything more than that I entirely accept the conclusion of the learned Subordinate, Judge. This being so the appeal fails and must be dismissed with costs.

Fazai, All J.

I agree.