MAKHAN LAL GHOSE Vs. MAHALUXMI BANK LTD

JUDGEMENT

(1.) This is an appeal from an order under Order 21, Rule 90 of the Code of Civil Procedure refusing to set aside a sale in execution of a decree for mortgage. The sale took place as early as 23-4-56 and the present petition under Order 21, Rule 90 of the Code was filed on 28-1-61. Evidently the petitioner did not come within the period of limitation but could have come if the petitioner could make out a case under Section 18 of the Limitation Act of 1908 and so far as that is concerned the case was in the petition as follows :--

(2.) The trial court heard the petition under Order 21, Rule 90 C. P. C. Oral and documentary evidence was adduced by both parties. The trial court came to the finding that opposite party No. 1 namely the decree-holder, knew from before the sale on 23-4-54 that the suit premises comprised of two-storeyed building. We find from evidence on record Ext. 2 which would show that the premises in question was a two-storeyed building and the decree-holder knew that even though he described the building as one storeyed building and the result was that the property was sold at a gross under-valuation; the trial court finds that the property was sold at a gross-under valuation. The court found that the processes were not fraudulently suppressed and they were not suppressed at all. The result, therefore, must be that the court found that the application was barred by limitation and the court did find that the petition was hopelessly barred by limitation under Article 166 of the Limitation Act and therefore the application failed.

(3.) On this finding and on the state of evidence as it is on the record Mr. Sen Gupta has not urged that the petitioner was entitled to the benefit of Section 18 of the Limitation Act. But Mr. Sen Gupta urged that the decree-holder committed fraud upon the court. The fraud was that the decree-holder knew that the property was a two-storeyed one. Having known it to be two-storeyed property he described it in the sale proclamation under Order 21, Rule 66 to be one-storeyed building and gave valuation consistent with such description. This the decree-holder did with knowledge and for a purpose and therefore the decree-holder committed fraud upon the court. But the trial court has found that the decree-holder knew about it and further found that there was a gross under valuation. Therefore. Mr. Sen Gupta urges that there was fraud committed upon the court by the decree-holder in suppressing the true state of affairs, namely that the property was two-storeyed and giving a false value of the property to the knowledge of the decree-holders. He, therefore, says as that fraud was known to the court, the court had the duty to remedy that fraud. Mr. Sen Gupta refers to a decision reported in Marudanayagam Pilliai v. Manickavasakam Chattiar, 49 Cal WN 292 = (AIR 1945 PC 67). The Judicial Committee held as follows: