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6 paragraphs · 372 wordsVarma, J.—This miscellaneous appeal arises out of an order passed by the Subordinate Judge of Patna, under O. 21, R. 90, Civil P.C., setting aside the auction-sale of 19 lots of property. The sale was held between 28th May 1929 and 16th November 1929, for Rs. 2,950. The application for setting aside the sale was made on 5th August 1933. The Subordinate Judge held that the processes were not duly served, that the price of the property sold was at least Rs. 13,000, and that the applicant, who is the respondent before us, being still a minor no question of limitation arose in the case.
The finding of the Subordinate Judge on the question of the service of the processes is not to my mind to the effect that there was a fraudulent suppression of the processes. On behalf of the applicant, it appears that her father was the only witness who stated that the processes in the execution case were not served; while the decree-holder examined two witnesses, Viz., one of his servants and a process-server of the Court. The Subordinate Judge does not characterize the evidence of the witnesses for the decree-holder as unreliable. That being so, the contention of Mr. Baldeo Sahay, appearing in support of the order, that S. 18, Limitation Act, will govern the case loses its force. Moreover, the Subordinate Judge also was not of the opinion that S. 18 was applicable. On the question of limitation, the Judge merely says: "The applicant being still a minor no question of limitation can arise in this case." Evidently the Subordinate Judge was thinking of S. 6 of the Act; but that section clearly does not cover a case of this nature. S. 6 deals with cases.
where a person entitled to institute a suit or make an application for the execution of decree is, at the time from which period of limitation is to be reckoned, a minor, or insane or an idiot.
In this view of the matter the contention of Mr. B.N. Rai must prevail. I would therefore set aside the order of the Subordinate Judge setting aside the sale and allow this appeal with costs.
Courtney Terrell, C. J.
I agree.