DVEERAPPA Vs. BANGARAPPA

JUDGEMENT

(1.) The auction-purchaser in R. E. P. 484 of 1954 in the Court of the Civil Judge at Shimoga, is the petitioner in this Court. The Court sale held in that case was set aside by the trial Court on an application filed by one of the judgment-debtors under Rule 90 of Order 21, C.P.C., on the ground that the sale in question was vitiated by material irregularity and fraud and it has occasioned substantial loss to the judgment-debtors. The decision of the trial Court was confirmed by the learned District Judge at Shimoga in Mis. Appeal No. 2/1957. Aggrieved by these decisions, the petitioner, the Court-auction-purchaser, ahs come up in revision to this Court under S. 115 of the Civil Procedure Code - Section 115 - Order 21, Rule 90.

(2.) It is argued that the executing Court was wrong in entertaining the application for setting aside the sale as the same was long barred by time. Admittedly, the said application was filed more than 30 days from the date of the sale in question. But the respondent relies on S. 18 of the Limitation Act - Section 18 to get over the bar of limitation under Schedule Article 166 of the Limitation Act. The Courts below have concurrently come to the conclusion that because of the fraud practised by the decree-holder, the respondent judgment-debtor was kept out of the knowledge of the sale and consequently his application was within time.

(3.) The learned counsel appearing for the petitioner, contends that a fraud played by the decree-holder would not be sufficient to extend the period of limitation under S. 18 of the Limitation Act, if the property has been purchased by a third party. According to him, no application under O. 21, R. 90, C.P.C. can be entertained beyond the period of limitation fixed, if the property is purchased by a third party unless the auction-purchaser is a party to the fraud. He says that, in the instant case, the Courts below have not held that the auction-purchaser was a party to the fraud and consequently S. 18 does not come into operation. But according to the respondent, he can avail of the benefit of S. 18. Section 18 of the Limitation Act reads: