KALA Vs. JAVARAMMA

JUDGEMENT

(1.) This is an appeal against the order in R. A. 120/48-49 on the file of the Additional Subordinate Judge, Hassan, confirming the order of the learned Munsif, Holenarasipur, in Execution Case No. 03 of 1944-15.

(2.) The Judgment-debtor in Exn. 93/44-45 filed an application I. A. No. I, under Order 21, Rule 90 and Section 151, Civil Procedure Code to set aside a sale on the ground of irregularity and fraud in the publication and conduct or the sale held in that case. He filed also an application under Section. 18 of the Limitation Act alleging that he was fraudulently kept out from the knowledge of the sale and that he came to know of the property having been sold only when the purchaser attempted to take delivery of the property about three days prior to the filing of the application. Both the Courts below have found that there was fraud in the publication and conduct of the sale with the result that a valuable property was knocked off for a nominal sum and that on account of the fraud practised on the Judgment-debtor, he was not aware of the sale till the auction-purchaser went to take possession of the property. But the Courts below dismissed the application on the ground that the purchaser was not a party to the fraud and the application is barred by time, Section 18 of the Limitation Act not being of any help to the judgment-debtor as against him. It is not seriously disputed in this Court that fraud was practised against the judgment-debtor in getting the property sold without his knowledge with the result that it was sold for a nominal value. Time had been granted for payment of the decree amount in instalments. The original decree-holder died and on behalf of his L.R., her son-in-law Kalegowda was responsible for the conduct of the execution case. In fact even in this case it is he who has been examined and not the L.R., of the decree-holder. It will be noticed that there was a good deal of ill-will between Kalegowda the son-in-law of the decree-holder and the first applicant-judgment-debtor, Kalappa. There were even criminal cases between them. Kalegowda filed two execution applications for the full decree amount but it was found that they were both premature as the instalments due by then had been paid. As observed by the learned Subordinate Judge, Kalegowda alias Thimmiah had these two execution applications filed with the intention of getting the property sold though money due under the decree up to that time had been paid and that in case the judgment-debtors had not chosen to appear and contest the execution cases at that stage, possibly the execution would have been pushed through and the property sold. Then the execution case now under consideration was filed. Sale notice was not served, except for its being returned with a share of service on the house of the first judgment-debtor. Considering all the circumstances of the case including the way in which the previous execution applications had been filed, it is clear that the notice was returned with such an endorsement of service, to avoid the fact of the execution being brought to the notice of the judgment-debtor, as pointed out by the learned Munsiff. Both the Courts have rightly believed the evidence that the sale proclamation was not published by beat of tom tom. The conduct of the process-server D.w. 1, Nanjappa in not having made a shara on the assurance of the Patel that he would get the tom torn made at the village deserves enquiry. Copies of sale proclamations were not affixed in the lands sold. The properties which had been hypothecated for Rs. 400/- and must have been worth at least double that amount were valued at Rs. 100/-. The only bidder present at the time of the sale was Lingegowda who purchased all the properties for Rs. 100/- only. None of the villagers evidently knew anything about the sale and even the purchaser Lingiah admits that he accidentally came to the place where the sale was being held. There is hardly any doubt that notices were suppressed by deliberate contrivance; there was wilful mis-statement in the value of the property sold in the sale proclamation and it is clear that all this was due to the ill-will between Kalegowda and the judgment-debtor, Kallappa. It is a clear case in 'which the sale should be set aside, in case the application of the judgment-debtor under Order 21, Rule 90, is in time.

(3.) The real point, however, that has troubled the Courts below is that the application has been filed more than 30 clays after the date of sale. It is true that the applicant judgment-debtor has been kept out of knowledge of the sale by fraud but according to the lower Courts this cannot be said to be a case in which the purchaser could be said to be a party to the fraud and as such, the Courts below dismissed the application to set aside the sale. It must however, be stated that fraud cannot usually be proved by direct evidence. It must be remembered that there was a murder case against Lingappa, who has purchased, the property and it is in evidence that Kalegowda who was decree-holder's agent and was responsible for the conduct of the execution case, is not only closely related to Lingegowda, but was also helping him in the criminal case against him. Lingegowda had no lands in the village in which the lands sold are situated. He was not aware of the fact that the properties were brought to sale on account of any sale proclamation. According to him, he had come to Holenarasipur to buy bullocks in the shandy, the usual way in which witnesses of his kind explain their presence in places where they are not likely to be present. It was by sheer accident, according to him, that he came to know of the sale near the Court and purchased the property. All these circumstances are materials more than sufficient for the lower Courts to have come to the conclusion that the purchaser was a party to the fraud. It is, however, not necessary to differ from the concurrent findings of the Courts below on a question of fact; but in our opinion even in cases where the purchaser in a Court sale is a bona fide purchaser for valuable consideration limitation for an application to set aside a sale runs under Section 18 of the Limitation Act from the date on which the applicant came to know of the fraud practised by the decree-holder preventing the judgment-debtor from be-coming aware of the sale and consequently of his right to get it set aside. My learned brother whose judgment I had the advantage of perusing has considered the views expressed in different cases and I have nothing useful to add. It is however desirable to analyse Section 18, Limitation Act and consider what is intended by the Section.