MIHIRLAL Vs. PANCHKARI SANTRA AND OTHERS

JUDGEMENT

(1.) The applicant before us purchased at auction an occupancy raiyati holding, in execution of a rent decree. The sale was held on 13th March 1946. On 25th April 1946, an application was filed by one Kachimannessa Bibi claiming to have purchased the interest of the judgment-debtors, for setting aside the sale under the provisions of Section 174 (3), Bengal Tenancy Act. This application was dismissed by the Court on 13th December 1947. On 5th January 1948, the auction-purchaser the petitioner before us filed an application for confirmation of the sale. The sale was ultimately confirmed on 27th March 1948. On 27th June 1948, an application was filed by two of the 17 judgment-debtors who are Panch Kari Santra and Satya Bala Dasi, opposite parties Nos. 1 and 2, under Section 174 (3) Bengal Tenancy Act, for setting aside the sale on the ground of fraud and irregularity in publishing and conducting the sale. The learned Munsif allowed the application and the learned District Judge has dismissed the appeal that was filed by the present petitioner against that decision. The learned District Judge has come to the conclusion that the decree-holder was guilty of fraud inasmuch as he mentioned the value of the holding at Rs. 10 only in the sale proclamation and further that he fraudulently suppressed the sale proclamation and other notices. He also came to the conclusion that the auction-purchaser was also guilty of fraud and that consequently the applicants under Section 174 (3), Bengal Tenancy Act, were entitled to the benefit of Section 18, Limitation Act, and so, the application though filed long after six months after the date of the sale, was not barred by limitation.

(2.) The first question agitated before as is whether the learned District Judge acted irregularly and illegally in the exercise of his jurisdiction in coming to the conclusion that the auction purchaser was also guilty of fraud. The learned District Judge appears to have based his decision in this matter on two facts, first, that the auction purchaser has benefited by the fraud on the part of the decree-holder inasmuch as there was paucity of the bidders because of the gross under valuation in the sale proclamation and the auction-purchaser was thus able to have the land for an inadequate price. The other ground on which the learned District Judge relied was that the auction purchaser did not apply for delivery of possession for two years after the date of the sale.

(3.) It has been pointed out to us by Mr. Mukherji on behalf of the petitioner that the learned District Judge misread the evidence, inasmuch as he omitted to notice that the sale was confirmed as late as 21st February 1948 so that the delay of the auction-purchaser was not 2 years but only me month. I am myself unable to agree that the mere fact that the auction-purchaser makes delay in applying for delivery of possession can be any ground for thinking that he is acting fraudulently with a view to prevent the judgment-debtors from knowing about the sale. But even if such delay can justify any conclusion as regards fraud, it is abundantly clear that there was no such delay as the learned District Judge seems to have wrongly thought. From the fuels pointed out above it appears that though the sale was actually held on 13th March 1946 the application under Section 174 (3) filed by Kachimannessa was not disposed of till 13th December 1947. It was only after that application was disposed of that the auction-purchaser could take any steps for getting the sale confirmed. That he did, as we have seen, on 5th January 1948 and the sale was confirmed on 21st February 1948 and he put his application for delivery of possession on 27th March 1948. There was therefore, as already stated above, no appreciable delay on his part.