Nemai Chand Kanji and others vs Deno Nath Kanji and others

Maclean, C.J.—The first question is:--Does a second appeal lie?

It is difficult to say that the application is one entirely within sec. 311. Fraud is charged : the judgment-debtors'' case is fraud; something more is alleged than a "material irregularity in publishing or conducting the sale" and that being so, we think the case is within sec. 244, although the question is one between the judgment-debtor and the auction-purchaser who was not the decree-holder (see the judgment of the Privy Council in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal I. L. R. 19 Cal. 683(689). The order then is one under sec. 244, and is not one of the orders specified in sec. 588, it is a "decree" within the meaning of sec. 2 of the Code and a second appeal will therefore lie. The District Judge has decided the case on the footing that it falls within art. 166 of the 2nd schedule of the Limitation Act, and that the Petitioner is barred by that statute. This, we think, is erroneous as that article refers to applications under sec. 311 of the Code, and not to those under sec. 244.

It is not very clear from the judgment of the learned District Judge whether or not he has or has not found fraud. I should infer he intended to find that there was no fraud. We think in the first place he ought to find definitely whether there were or were not fraud on the part of the decree-holder and the auction-purchaser or either, and in dealing with this part of the case we would suggest that he should not lose sight of the judgment-debtors'' allegations that the decree was ex parte, only for 6 rupees or so that it has since been set aside, that there was no service of the attachment writ on him nor of any sale proclamation, and that the property, worth 1,200 rupees was sold for 12. If these allegations be satisfactorily proved it will be for the Judge to say whether such concatenation of circumstances does not indicate fraud on the part of the decree-holder and perhaps the auction-purchaser, one or both. If he find there were fraud, then art. 166 is no bar to the suit, and the Petitioner ought to succeed as the case would come within art. 178 and the period of three years has admittedly not expired. If he find the reverse then art. 166 would apply and the Petitioners should fail. With this indication of our opinion we remand the case to the District Judge. The appeal must be allowed with costs.

Macpherson, J.

I agree.