Luchmipat and Another vs Mussummat Mandil Koer

This is a second appeal against an order of the Officiating District Judge of Gya confirming an order of the Subordinate Judge of that District setting aside a sale held on the 22nd December 1896. The facts leading up to the sale are shortly these :--The Plaintiff, decree-holder, advanced Rs. 13,000 to the Defendant upon the zuripeshgi of a certain property, and sublet the same property to the Defendant on a certain rent reserved. Subsequently, he brought a suit for the rent so reserved, and a decree upon a compromise, entered into between the parties, was awarded in favour of the decree-holders entitling him to realize a certain amount from the Defendant. He subsequently applied for execution, and sought to and did attach and proclaim for sale not only the thiea right held by the Defendant under him (the Plaintiff), but also the zuripeshgi claim of Rs. 13,000 which the Defendant had against him. The property was then sold as described in the proclamation of sale and was purchased by the decree-holder himself for the sum of Rs. 1,020. The sale appears to have been confirmed on the 22nd January 1897; but the Defendant, the judgment-debtor, on the 7th May 1897 presented an application to the Court which had sold the property upon the ground that the sale proceedings wore entirely bad by reason of fraud on the part of the decree-holder in the conduct thereof, and that he was entitled to have the sale set aside. This application was, apparently, made under sec. 311 of the Code of Civil Procedure.

The Subordinate Judge was of opinion that a sale like this which conveyed to the purchaser not only the thiea right but also the claim for Kb. 13,000 which the Defendant had against the Plaintiff could not have been held under the Bengal Tenancy Act. He was further of opinion that there was fraud in the matter of publishing the sale notification, and that the Applicant did not come to know of the fraud until very recently He accordingly set aside the sale.

Upon appeal by the decree-holder, purchaser, the learned District Judge has practically taken the same view as the Sub-Judge did, though ho has not expressed any opinion upon the question of fraud raised upon the application of the Defendant.

The learned counsel for the Appellant and the learned vakil who followed him in this ease have contended that, having regard to the provisions of Art. 166 of the Limitation Act, read with sec. 311 of the CPC and sec. 18 of the Limitation Act the sale could not be set aside, unless and until it be found that there was fraud and that the Defendant was not aware of such fraud until within thirty days antecedent to the presentation of the application for setting aside the sale.

No doubt the learned Judge has not come to any decision upon the question of fraud; and if the application upon which the order of the Subordinate Judge was made be regarded as one under see. 311 of the Code of Civil Procedure, it was necessary that the learned District Judge should have come to some conclusion or other upon the matter of fraud; for unless the fraud come to the knowledge of the Defendant within 30 days before'' the date of his application, the sale could not be set aside under sec. 312 of the Code of Civil. Procedure. But then there is this difficulty in the way of the Appellant. If the order that was made by the Subordinate Judge setting aside the sale in question was an order under sec. 312 of the CPC no second appeal would lie to this Court, having regard to the provisions of sec. 588 of the Code, the order having been confirmed on appeal by the District Judge, and the law allowing only one appeal against such an order.

It has, however, been contended on behalf of the Appellant that the application of the Defendant, judgment-debtor, should be regarded as one falling within see. 244 of the Code of Civil Procedure, and the order of the Subordinate Judge and that of the District Judge on appeal should similarly be regarded as orders under that section Mr. Bonnerjee on behalf of the Respondent accepts that position, and contends that if the proceedings before the lower Courts be regarded as coming under sec. 244 no question of fraud need have been gone into by the District Judge on appeal, because such a question would only arise and would be necessary to be decided if his client were compelled to make his application within thirty days from the date of the sale, as provided by Art. 166 of the Limitation Act, or within thirty days from the date of discovery of the fraud as provided by Art. 166 read with sec. 18 of the Limitation Act.

We are of opinion that this contention is sound, for when once you take it that the proceedings in this matter were under sec. 244, the judgment-debtor need not have made his application within 30 days, because under Art. 178 of the Limitation Act the limitation with respect to an application falling within that section would be three years from the date when the right to make such application accrued, there being no period of limitation provided elsewhere for such an application. The sale in this case having taken place within throe years from the date of the application, no question of limitation here arises, nor need the Court go into any question of fraud. The only question that has to be considered is whether the sale was a good or bad sale.

Having regard to the provisions of secs 162 and 163 of the Bengal Tenancy Act we are of opinion that nothing but the tenure in default could have been sold, and that therefore the sale of the claim which the Defendant had against the Plaintiff was altogether bad.

Upon these grounds we think that the order of the Court below is one with which we cannot interfere, and we accordingly dismiss the appeal with costs. We assess the hearing fee at five gold mohurs.