Pailee vs Krishna Panicker

Sadasivan, J.—The defendant in S. C. S. 997/57 on the file of the Munsiff of Kozhikode is the revision petitioner. The decree obtained against him was put in execution and the schedule items 2 acres and 94 cents of garden land with building and 1 acre and 14 cents of paddy land were sold to the 3rd respondent for Rs. 26/- On 3-7-67. The defendant is the assignee from the debtor and the assignment was taken at a time when the E. P. was pending. Proceedings in execution, thereafter were not known to the petitioner and he came to know of the same only on 5-7-63 when the Amin went over to the property for effecting delivery. He accordingly filed a petition under Order 21. Rule 90 C. P. C. for setting aside the sale. Along with that petition a claim petition under Order 21, Rule 58 was also filed; but that was not pressed and it was accordingly dismissed.

The learned Munsiff took the view that the petition for setting aside the sale is not maintainable and the proper course open to the petitioner was to file a claim petition under Order 21. Rule 58. The Court further held that it was unwise on the part of the petitioner to have not pressed the petition under Order 21, Rule 58. To quote the learned Munsiff:

"The proper remedy for the petitioner was to file an application under Order 21, Rule 58 which he really filed as E. A. 1036/63. That petition was filed on 10-7-63 after the date of sale and it was dismissed on 31-10-63 because it was not pressed by the petitioner. This petition was filed on 19-7-63 alleging irregularities and fraud. The petitioner is not entitled to file an application under Rule 90 disregarding Rule 58 of Order 21."

The learned Munsiff is clearly in error in having held that the proper course for the petitioner was to file a claim petition under Order 21. Rule 58. No claim can be sustained after the sale. A petition under Order 21. Rule 58 can lie at the time of attachment; when once a sale has taken place the remedy open to the debtor is to file a petition under Order 21, Rule 90 to set aside the sale. The learned Munsiff in the above view did not go into the merits of the petition. The petition was accordingly dismissed. On appeal the learned District Judge of Kozhikode held that a petition under Order 21. Rule 90 is maintainable: but he held against the petitioner saving that the petition is time barred. The ground taken by the petitioner for vacating the sale was that by the fraud of the decree-holder he was prevented from filing his petition earlier. The learned Judge has found fault with the petitioner for not having made specific averment to the effect that by virtue of the fraud of the decree-holder or auction-purchaser the petitioner was prevented from filing the petition under Order 21, Rule 90. The learned Judge would observe:

"It is argued by the appellant''s learned counsel that Section 18 of the Limitation Regulation governing case of fraud will apply to this case on the averments contained in the petition and applying Section 18 of the Limitation Regulation, the period of time to file the petition is automatically extended and he need file the petition only on knowledge of the fraud. Reliance u/s 18 of the Limitation Regulation is not placed in the petition for extending the period of limitation. Neither is there a specific averment in the petition that the petitioner was actively prevented by the fraud of the decree-holder in not filing the petition within time ........................ For reasons above stated, in the absence of specific averment in the petition that the petitioner was actively prevented by the fraud of the decree-holder in preferring a petition under Order 21. Rule 90 within time, this petition alleging only general fraud in the matter of conduct of sale will not assist the petitioner in inferring fraud so as to attract Section 18 of the Limitation Regulation and hence the present petition is patently barred by limitation even on the averments in the petition and as such this appeal is dismissed."

The learned appellate Judge. I am afraid, has gone at a tangent and dismissed the petition on unsustainable grounds. This court has held in Mathen Simon of Mukalal Vs. Ouseph Looka of Makkiyil and Others, that so long as the judgment-debtor does not come to know of the sale, the effect of the fraud continues, and the only conclusion to which the courts can come is that he had been kept back from the knowledge of the sale in consequence of the initial fraud practised by the decree-holder. The learned Judge observed in that case:--

"It is only after he becomes aware of the sale that he comes to know of his right to apply. The case, therefore, comes within Section 18, Limitation Act".

Limitation would start in such cases, only from the date of knowledge on the part of the judgment-debtor. About the want of averments in the petition the Supreme Court has observed as follows In Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, :--

"If the facts proved and found as established are sufficient to make out a case of fraud within the meaning of Section 18. Limitation Act, the objection that the plea u/s 18 was not taken in lower courts or in the grounds of appeal is not serious as the question of the applicability of the section will be only a question of law and such a question can be raised at any stage of the case."

Thus the point to be remembered is whether fraud has actually been practised by the decree-holder so as to keep the judgment-debtor in the dark as to the proceedings which resulted in the sale. Absence of averments of fraud is not material. The petition is, therefore, to be considered on its merits. The appellate court also has not troubled itself with considering the petition on its merits.

I would, therefore, set aside the judgment and order of the courts below and remand the case to the learn-ed Munsiff for consideration of the petition under Order 21, Rule 90 on its merits and disposal according to law. The revision petition is thus allowed. Costs will abide the final result.