EARAMALLA SANJAMMA Vs. ANNA SAYANNA

JUDGEMENT

(1.) THE plaintiff is the appellant. He owned a house which had been usufructuarily mortgaged to the second defendant for a sum of Rs. 170. A suit for the recovery of a money debt was filed by the first defendant against the plaintiff in the Panchayat Court of Cumbum and a decree was obtained. The decree was transferred for execution to the District Munsiff's Court of Markapur as the house belonging to the judgment -debtor was situated within the territorial jurisdiction of that Court. In the execution sale held on the 16th October, 1942, in E. P. No. 28 of 1942 the mortgagee second defendant purchased the house subject to his own mortgage for a sum of Rs. 155. The plaintiff thereupon brought the suit out of which this appeal arises to set aside that Court sale on the ground that the decree was obtained by fraud and that there was also fraud in connection with the sale proceedings. The fraud that was alleged in connection with the decree was that although she had permanently left Cumbum and was residing in Markapur, the suit was filed in the Panchayat Court at Cumbum which had no jurisdiction to entertain the suit against her. With regard to the sale, the fraud that was alleged was that there had been an understanding between the first defendant and the plaintiff that the former should receive from the latter a sum of Rs. 50 in full satisfaction of the decree and it was in pursuance of that understanding that an application was made jointly by both to the Court on the 17th August, 1942, to which date E. P. No. 28 of 1942, had originally stood posted, to adjourn the sale for a period of two months in order to enable her to pay the said sum. The plaintiff's contention is that sometime prior to the 16th October, 1942, to which date the sale was posted the plaintiff paid a certain portion of the agreed sum to the first defendant and the first defendant agreed to give her some further time for the payment of the balance. He also undertook to see that the sale did not come off on the 16th October, 1942. Depending upon that assurance she did not attend the Court on the 16th October, 1942, and on that day the second defendant in collusion with the first defendant purchased the property in the Court auction which was held for Rs. 155 subject to his mortgage, and the sale was subsequently confirmed by the Court. She contends that the house is actually worth Rs. 600 and the sale was brought about as a result of fraudulent collusion between the two defendants against her. The first defendant in his written statement supported the plaintiff's case and stated that he had given a letter to the second defendant on the 15th October, 1942, to be delivered to his pleader to obtain a further adjournment of the sale and that that letter was fraudulently suppressed by the second defendant who, knowing all the circumstances, fraudulently purchased the property in his own name. The second defendant denied all these allegations and stated that there was no fraud either in connection with the decree or in connection with the sale. He alleged that there was collusion between the plaintiff and the first defendant and he also contended that the suit was not maintainable. Several issues were framed concerning the allegations of fraud and material irregularity with reference to the sale and concerning its legality. The third issue which was in the following effect: Whether the suit to set aside the execution sale is maintainable in law " was tried by the trial Court as a preliminary issue and it was held that Order 21, Rule 92(3) of the Civil Procedure Code was a bar to the suit and that consequently it was not maintainable. The suit was dismissed by the trial Court and the learned District Judge on appeal agreed with the view taken by the trial Court, and hence this appeal.

(2.) THE first objection with regard to the maintainability of the suit is based upon the bar provided in Sub -rule (3) of Order 21, Rule 92. Rule 90 provides for an application to set aside an execution sale on grounds of irregularity or fraud. Sub -rule (1) of Rule 92 provides inter alia that where no application has -been made under Order 21, Rule 90, the Court shall make an order confirming the sale and thereupon the sale shall become absolute, and Sub -rule (3) provides, " No suit to set aside an order made under this rule shall be brought by any person against whom such order is made." In the present case, admittedly, no application was made under Order 21, Rule 90 and hence it is contended that Sub -rule (3) precludes the institution of a suit to set aside an order made under Rule 92(1) confirming the sale. Before dealing with this question, I have to take note of the fact that in the course of the appeal before the learned District Judge it seems to have been conceded on behalf of the plaintiff that Order 21, Rule 92(3) is a bar to the maintainability of the present suit and hence the learned Judge did not feel called upon to examine that question in any detail although at the end of his judgment he stated that on the facts he agreed with the learned District Munsiff that the suit was not maintainable in view of the provisions of Order 21, Rule 92. Mr. Appa Rao is not making any such admission in this appeal, and being a question of law he contends that it is open to him to say that the admission made by the learned advocate for the plaintiff in the lower appellate Court is erroneous in law and is not binding. His argument is that it is only where there is an allegation of material irregularity or fraud in publishing or conducting a sale that Order 21, Rules 90 and 92 would come in for application. But where the allegation of fraud relates to a matter which has nothing to do with the publication or conduct of a sale the bar provided by Rule 92(3) does not arise. The contention has to my mind to be upheld. The question whether the sale was brought about by the fraud of the decree -holder, the auction purchaser and others and the question whether the decree itself was obtained by fraud are matters outside the scope of Order 21, Rule 90. Vide Khagendranath Mahata v. Pran Nath Roy, (1902) L.R. 29 L.A. 99 :, I.L.R. 29 Cal 395 (P.C.) and Bhagwan Das Marwari v. Suraj Prasad Singh, I.L.R. (1924) All. 217. The learned District Judge has in this connection particularly referred to the conduct of the plaintiff in acquiescing in the decree which she is deemed to have done by reason of the joint application made by her on the 17th August, 1942, for the adjournment of the sale on the same proclamation. If it is treated as a matter from which some sort of estoppel arises, then there should be a specific pleading with regard to that matter and on a properly raised issue the plea will have to be investigated as one of fact. From the mere circumstance that the plaintiff was a party to an application for an adjournment of the sale, an inference cannot be drawn that she acquiesced in the correctness and validity and the binding nature of the entire decree. Her own case is that she made the application because, even though the decree was obtained by fraud, she was willing to settle the matter at a sum of Rs. 50 in full satisfaction and that the first defendant had agreed to the same, but after having done so and having obtained from her a portion of the amount he colluded with the second defendant and made her keep away from the sale with the result that the second defendant purchased the entire property for a grossly low price. That case has not been investigated at all, and without doing so, to infer from the mere filing of the application that she had acquiesced in the validity and legality of the decree is, to say the least, unreasonable and unjust. That question will therefore have to be left open for being duly tried in the course of the trial of the suit.

(3.) THESE being the tests and principles laid down in the various decisions, we have to examine the Village Courts Act to see whether by reason of Section 73 of that Act the jurisdiction of the Civil Courts is excluded with regard to suits or remedies which are ordinarily cognizable by a Village Court. Section 13 lays down the classes of suits of which the Village Courts can take cognizance and of which those Courts cannot take cognizance, and Section 14 lays down the conditions upon which the jurisdiction of the Court arises. We then have Section 20 -A which runs thus: