KAMAL KUMAR NAG CHOUDHURY Vs. PARBATI CHARAN KUNDU

JUDGEMENT

(1.) This is a reference under proviso (ii) to Rule 1 of Chapter II of the Appellate Side Rules and the point referred relates to extension of time under Section 18 of the Indian Limitation Act. The point has arisen in connection with the setting aside of a sale under Section 174(3) of the Bengal Tenancy Act but the reference is much more comprehensive as the question has been framed in such a way as to include as well cases under Order XXI, Rule 90 of the Code of Civil Procedure. There is a family likeness in the two classes of cases and so far as the present point is concerned, it is pre-eminently a matter which is better and more effectively dealt with at once, or, at one and the same time, in relation to the above two statutory provisions.

(2.) The instant case, out of which this reference arises, was one for setting aside a sale under Section 174(3) of the Bengal Tenancy Act. The application under the section was filed by one of the judgment-debtors. The trial court found in favour of the applicant both on the question of 'substantial injury (undervaluation and inadequacy of price) and the requisite fraud and material irregularity "in publishing and conducting the sale" but, as the application had been filed beyond six months from the date of the sale and as the auction-purchasers were held) to be strangers, "not guilty of or accessory to any fraud" under Section 18 of the Indian Limitation Act, the trial court felt powerless to extend time under that section and, accordingly, it dismissed the application solely on the ground of limitation. That decision was upheld by the learned Additional District Judge, mainly, on the ground of limitation, upon the view, which, also, was the view of the learned trial Judge on the point that, for extending tune against the auction-purchaser, it was necessary to find against him, too, fraud, as contemplated by the section, either as principal or as accessory, and, unless that was found and time extended as against him also, the application would fail on the ground of limitation. Incidentally, the learned Additional District Judge differed from the trial court on the question of material irregularity and fraud in the matter of publishing and conducting of the sale but his finding on the point was rather of a tentative character, and, as to undervaluation and inadequacy of price, he did not record any finding whatsoever and the finding of the learned Munsif on the point in favour of the applicant stood unreversed. The matter then came up to this Court and our learned brother Bachawat, J., who Heard the Rule, originally, or in the first instance, sitting singly, was of the opinion that if the view of the two courts below on limitation was correct, the Rule would fail, but if, on the other hand, for extension of time under Section 18 of the Indian Limitation Act, it was not necessary to prove that the auction-purchaser also, - in addition to the decree-holder,was "guilty of or accessory to" the fraud, contemplated under the section, the applicant-petitioner was entitled to such extension in the instant case and his application could not be thrown out on the ground of limitation and, in that event, the case would have to go back to the lower Appellate Court for proper consideration of the other questions, involved therein, as the finding of the learned Additional District Judge on the question of material irregularity and fraud in the publishing and conducting of the sale was more or less incidental and tentative and did not possess the character of a firm finding, made on a full and due consideration of the evidence and of the different aspects of the matter, so as to be final, binding and conclusive between the parties. On the question of limitation, to wit, the legal aspect of Section 18, adumbrated hereinbefore, Bachawat J., was inclined to differ from the two courts below but he was unable to give effect to his said inclination, and to remand the case in the light of his opinion on the other part of the case, as already indicated above, in view of the two Bench decisions of this Court, reported in Mihirlal v. Panchkari Santra, and Majibar Rahaman v. Rahu Bux Dhali. As, however, Bachawat J. was unable to reconcile himself to the aforesaid two decisions, on reasons and on principle, he took the only course, open to him in the matter, namely, of referring the case to the Division Bench, but, in making the said reference, he gave detailed reasons in support of his view that the above two Bench decisions were not correct and required reconsideration.

(3.) In the Division Bench, the case came up before Sarkar, J., and myself and, as we felt that the point was of sufficient importance to justify and require consideration, at least, by a Special Bench, we made the necessary recommendation and referred the matter to the learned Chief Justice for an appropriate reference to a Special Division Bench under proviso (ii) to Rule 1 of Chapter II of the Appellate Side Rules of this Court, This reference has, accordingly, been made by the learned Chief Justice and we have been constituted the Special Division Bench for hearing and disposing of the same.