Jwala Prasad Thakur Mahton vs Jhaman Mahton and Others

Jwala Prasad, J.—This is an application against the appellate order of the District Judge, dated the 26th June 1923, setting aside an auction sale. The decree holder purchaser is the appellant petitioner. The sale took place on the 26th March 1922, and was confirmed on the 21st April 1922. The application to set aside the sale under Order XXI, Rule 90 was filed on the 20th July, 1922, that is, three months after the date of the confirmation. In order to get over limitation the judgment-debtor alleged fraud in suppressing the processes. The petition for setting aside the sale runs as follows:

That the decree-holder executed the said decree out of sheer mala fide intention, having got all the processes, i.e., notices, attachment, sale proclamation, etc., served bala bala and has himself by fraudulently bringing the property of the judgment-debtor to sale, purcased the property for an insignificant price... that the decree-holder did so fraudulently and with intent to purchase the kasht bala bala, so that there might not be a gathering at the sale and the judgment-debtors might remain in dark...; that owing to the fraudulent service of processes bala bala there was no information of the execution proceedings to the judgment-debtrs...they came to know of the sale, etc., all of a sudden when the Court peon went for delivery of possession, whereupon on further inquiry the fraud practised by the decree-holder was discovered...that owing to non-service of the execution processes in the mofassil there could not be bidders at the sale and the decree-holder thus got the opportunity of purchasing the property worth Rs. 4.00 for an insignificant sum of Rs. 64 only...and that had there been any information of the execution proceedings they would not have allowed their property to be sold for bare Rs. 64 which is calculated to be much to their detriment.

The Court below held:

(1) That the property worth not less than Rs. 500 was sold for a grossly inadequate price of Rs. 60; (2) that there was material loss to the judgment-debtor;

(3) that this loss was due to material irregularity in deliberate misstatement and under-valuation and to the suppression and non-service of notice under Order XXI, Rule 22 of the Code of Civil Procedure;

(4) that the non-service and suppression of processes was with the mala fide motive on the part of the decree-holders to purchase the property themselves and to keep the knowledge of the pending execution and sale from the judgment-debtors;

(5) and that the judgment-debtor was kept out of the knowledge of the sale and his right to apply for setting aside the sale under Order XXI, Rule 90 at the time when the dakhaldehani was executed.

Upon these findings the Court below set aside the sale, holding that the sale was illegal, irregular and fraudulent and that the judgment-debtor was kept out of the knowledge of the execution proceedings and the sale, and of the right to apply under Order XXI, Rule 90 by fraud practised by the decree-holder; and consequently the judgment-debtors are entitled u/s 18 of the Limitation Act to apply for setting aside the sale within 90 days from the time when the fraud became known to them and they had knowledge of the sale.

These are findings of fact and are not capable of being challenged in revision. The learned Counsel for the decree-holder purchaser urges that the judgment-debtors were not entitled to the benefit of Section 18 of the Limitation Act, inasmuch as the finding as to their having been prevented from getting any information of the sale is wrong, for there is no allegation in the petition for setting aside the sale, or in the evidence, of any fraud having been committed by the decree-holders in keeping the judgment-debtors ignorant of the sale and their right to apply under Order XXI, Rule 90 to set aside the sale. In order to appreciate this argument. I have considered the petition and the evidence. The case of the judgment-debtor has been that on account of the fraud and dishonesty the processes in execution were altogether suppressed and that they were kept out of the knowledge of the execution and the sale by the fraud of the decree-holders who wanted to purchase the property themselves. It is clearly stated both in the petition as well as in the evidence that the fraud practised by the decree-holders resulting in the ignorance of the judgment-debtors of the sale continued till the dakhaldehani when for the first time they came to know of the execution and the sale, and the fraud was dispelled. In such a case the decree holders once guilty of fraud in bringing about the sale and keeping the judgment-debtors ignorant of it must show that opportunity was offered to the judgment-debtor to discover the fraud and that the fraud was in fact dispelled subsequent to the sale, or else the fraud once committed would continue: vide Rahimbhoy Habibhoy v. Clailes Agnew Turner 17 B. 341 : 20 A.L.1 : 6 Sar. P.C.J. 256 : 17 Ind. Jur. 40 : 9 Ind. Dec. (N.S.) 222 (P.C.). The principle these enunciated was applied by Ross, J. recently in Mahabir Ram v. Rambahadur Dubey (2) and in the case of Dirgopal Singh v. Kewal Kishun Singh. Civ. Rev. No. 377 of 1923. I have considered the authorities cited at the Bar during the hearing of the case: Jagdhar Missir v. Dhorai Khalwa 67 Ind. Cas. 404; Babu Das Narayan Singh v. Mir Muhammad Yusuf 61 Ind. Cas. 823 : 2 P.L.T. 401 : (1921) Pat. 181 : 8 U.P.L.R. (Pat.) 33 : 6 P.L.J. 319; Rahimbhoy Habibhoy v. Charles Agnew Tunner 17 B. 341 : 20 A.L. 1: 6 Sar. P.C.J. 256 : 17 Ind. Jur. 40 : 9 Ind. Dec. (N.S.) 222 (P.C.); Mahabir Ram Vs. Rambahadur Dubey and Another, , and Kumar Chandra Kishore Roy Chowdhury v. Basarat Ali Chowdhury 44 Ind. Cas. 763 : 27 C.L.J. 478 : 22 C.W.N. 627. These cases do not help the petitioner, inasmuch as in the present case fraud was specifically alleged in the decree-holders suppressing the notices and the processes and thus keeping the judgment-debtors ignorant of the sale until the dakhaldehani. The fraudulent acts where by the judgment-debtors were kept ignorant of their right to apply to set aside the Bale have also been found by the Court below.

The application is, therefore, dismissed with costs. Hearing fee two gold mohurs.