A A JOSEPH Vs. VARGHESE GEORGE

JUDGEMENT

(1.) THE additional decree-holder is the revision petitioner, who is hereinafter referred to as 'the decree-holder'. He challenges an order dismissing his petition to set aside a court sale under order XXI R. 91 of the Code of Civil Procedure. We are now concerned only with item 2 of the properties sold in court auction which is hereinafter referred to as 'the property'. THE property was attached on 19-8-1968. It was purchased by the decree-holder in the court sale conducted on 16-3-1970 for an amount of Rs. 10848. 72. After confirmation of sale delivery was effected on 6-11-1970. Respondents 12 to 14 before the lower court filed a petition for re-delivery on 25-11-1970. THE decree-holder received notice of this petition on 154-197i. He filed E. A. No. 128/71 under Order XXI R. 91 CPC. to set aside the sale on 16-1-1971. Defendants 4 to 13 who were the owners of the property had sold it to respondents 12 to 14 before the lower court by registered sale deed dated 18-5-1966, namely before the date of attachment. THErefore the decree-holder alleged that the judgment-debtors had no saleable interest in the property and on that basis the application to set aside the sale was filed. THE decree-holder also raised the ground that is the encumbrance certificate issued, the sale in favour of respondents 12 to 14 was not entered. It was further submitted that the 8th defendant who filed objections to the proclamation schedule did not disclose the fact of sale in favour of respondents 12 to 14.

(2.) THE above facts are admitted by both sides. THE only controversy is whether the application is barred by time. THE execution court held that the judgment-debtors suppressed material facts in the objection filed to the sale proclamation and that made the decree-holder believe that the judgment-debtors bad saleable right over the property and as a result he purchased the property in court sale. It was also found that the decree-holder knew about the assignment in favour of respondents 12 to 14 only on 15-1-1971 when he received notice in the re-delivery petition filed by them and therefore he is entitled to get the period till 15-1-1971 excluded. THErefore the execution court allowed the petition and the sale was set aside. However, in appeal the lower appellate court was of the view that it is for the person who alleges fraud to prove beyond any reasonable doubt that fraud was played upon him by the opposite party. According to the appellate court there is no proper allegation in the affidavit in support of the application to set aside the sale. Reliance was also placed on the decision reported in Annamma v. Tresiamma 1975 KLT 388 FB. to the effect that non-mention of the fact that the judgment-debtors have no title to the property in the objection to the proclamation schedule will not amount to fraud or misrepresentation. THErefore, the lower appellate court held that the judgment-debtors were under no legal obligation to enlighten the decree-holder about the transfer of the property. Accordingly the appeal was allowed and the application to set aside the auction was dismissed.

(3.) S. 17 of the Limitation Act is as follows: "17. Effect of fraud or mistake - (I) Where, in the case of any suitor application for which a period of limitation is prescribed by this Act (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against or set aside any transaction affecting, any property which (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. "