PODILA VENKANNA Vs. CHINCHINADA VENKANNA

JUDGEMENT

(1.) These revision petitions arise out of orders setting aside a court auction sale on the ground of fraud and material irregularity in publishing and conducting the sale, and excusing the delay in filing the petition to set aside the sale. The auction purchaser is the petitioner. The first respondent who is one of the judgment debtors alleged that he was not served with the sale notice as he was absent at Rangoon and the decree-holder committed fraud in taking the sale notice to his village knowing that he was at Rangoon, that there was no proper proclamation and that the sale was vitiated by material irregularities. The decree holder contended among others that the petition to set aside the sale was barred by limitation as it was filed beyond 30 days of the sale. Two petitions were filed by the first respondent in the District Munsif's Court of Tanuku, E. A. No. 842 of 1941 which was a petition under Order 21, B. 90, Civil P. 0. to set aside the sale and E. a. no. 947 of 1943 to excuse the delay in filing the petition to set aside the sale under Section 18, Limitation Act. Both the applications were allowed and the sale was set aside. The said orders were confirmed in appeals preferred by the petitioner. The auction purchaser now seeks to contest the correctness of the orders of the lower Courts.

(2.) The finding that the sale was vitiated by fraud and material irregularities has not been contested before me and the counsel for the petitioner confined his arguments to the question of limitation, the finding having been that there was fraud played upon by the decree-holder on the judgment-debtor who was prevented from coming to know of the sale and it was held that Section 18, Limitation Act applied. The counsel for the petitioner argues that in order to entitle the judgment debtor to avail himself of the extended time under Section 18, Limitation Act the fraud by reason of which the judgment-debtor was kept back from knowledge of the sale must be that of the auction purchases and not of the decree-holder. Section 18 runs as follows:

(3.) The nature of fraud that could be practised against the judgment-debtor with a view-to deprive him of the knowledge of the sale could, in the ordinary circumstances, be attributed mostly to the decree-holder's conduct. If the decree-holder could successfully see that notice of the execution proceedings, notice, effecting the sale proclamation and thereby of the sale itself, are not brought within the knowledge of the judgment-debtor, the judgment-debtor could not be made aware of the sale. It is very seldom that one could come across a case where the knowledge of the sale was kept away from the judgment-debtor when it could be attributed to the auction purchaser. Ordinarily the auction purchaser is a stranger to the proceedings and no duty is cast upon him to take any proceedings whereby the judgment-debtor could be made aware of the sale since the auction purchaser comes in only on the sale being held and it will be at the time of instituting proceedings for possession that he comes in contact with the judgment-debtor. No doubt in cases where the decree-holder himself is the auction purchaser and the fraud is that of the decree-holder it may be said the auction purchaser was a party to the fraud. It is therefore reasonable to hold that in order to entitle a judgment debtor to get the benefit of Section 18, Limitation Act in an application for seting aside sale it is not the auction purchaser's fraud alone that could be relied upon but the judgment debtor could also rely upon the fraud practised by the decree-holder in not bringing to his notice the sale. The proper construction of the language of Section 18, Limitation Act and its application to the provisions of Order 21, Rule 90, Civil P. C, would lead to the same result.