V P VENKATASWAMI CHETTIAR Vs. A MARIASUSAI

JUDGEMENT

(1.) THIS Letters Patent Appeal has been preferred by the auction purchaser against the order dated 12. 1. 1994 by a single Judge of this court in C. M. A. No,769 of 1993.

(2.) A third Party, namely the first respondent in the letters Patent Appeal, filed E. A. No. 487 of 1992 in E. P. No. 91 of 1990 on the file of the Principal Subordinate Judge, Tirunelveli, for setting aside the auction in favour of the appellant under O. 21, Rule 89 and under Sec. 151 of civil Procedure Code.

(3.) AT this junction, the learned counsel for the respondent sought to rely upon Sec. 17 of the Limitation Act and contended that since the executing court as well as the learned Single Judge of this Court has found that there was fraud, the limitation will begin to run only from the date on which the fraud was discovered. But in our view, there is no specific finding by the executing court or by the learned single Judge of this Court with reference to the fraud. It is also to be noticed that there is no specific plea in the petition filed by the first respondent with refere to Sec. 17 of the limitation Act. There is also no pleading as to how it was committed and when he came to know about the fraud. In the petition for setting aside the court auction sale, there is a simple statement that Deiveekalingam and natarajalingam, the sons of the respondent colluded with the auction purchaser in order to cheat him and also to escape from the contractual obligation as per the sale agreement. Apart from this there js also an allegation that the price of the property sold would be Rs. 3 lakhs, but the auction purchaser has purchased the property fc a sum ofrs. 50,010.