BASANTA KUMAR BISWAS Vs. MIHIRLAL BISWAS

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Civil Procedure against a judgment and order passed by the appellate court dismissing an application for setting aside a sale and reversing the order of the second court of Munsif at Alipore in Execution Case No. 189 of 1956.

(2.) This application is by the judgment-debtor. The sale in question was held on 12th October, 1955 and the petition for setting aside the sale under Section 174 of the Bengal Tenancy Act was filed on 2nd January, 1959. The petitioners' case was that they had no knowledge of the sale till December, 1958 when the decree-holder came to take possession of the property by force. The case was that all processes were suppressed; that there was fraudulent suppression of all proceedings relating to the publication and conduct of the sale and, further, that the judgment-debtor was kept out of his knowledge of the remedy available to him for having the sale set aside, in other words, the petitioner requisitioned Section 18 of the Indian Limitation Act to avoid the bar of limitation The trial court set aside the sale with respect to one-third share of the judgment-debtor-petitioner. The trial court found that the judgment -debtor had no knowledge of the salt and that the property was sold at an inadequate price. Two of the judgment-debtors, who filed the application for setting aside the sale, settled the matter with the decree-holder the sale was therefore set aside only with regard to one-third share The property in question is 1-57 acres of land situated in a village the rent of the property was Rs. 18/12 as and the land was agricultural. Decree was obtained for Rs. 87 and odd on 2nd June 1955 for arrears of rent and the Execution case was started on 26th August, 1955 in respect of the said agricultural land The case of the petitioner was that the claim in the Rent Suit was false and the property was under-valued in the sale proclamation and there were other material irregularities and fraud In publishing and conducting the sale.

(3.) The appeal court, however, set aside the findings of the trial court and dismissed the petition. Against that order the present petition was filed by one of the judgment-debtors, who did not settle the matter with the decree-holder.