SITARAM DAS Vs. LOKANATH DAS AND ORS.

JUDGEMENT

(1.) THIS revision arises out of an application under Section 228(2) of the Orissa Tenancy Act read with Section 18 of the Limitation Act, filed by the present Petitioner, who was judgment -debtor No. 2 in Execution Case No. 2852 of 1944 -45 on the file of the Rent Suit Deputy Collector, Cuttack.

(2.) THE Petitioner's case is that about half an acre of dhuli bhag land was put to sale and purchased by the decree -holder -opposite party for Rs. 23/ - on 15 -2 -45. He pleads that he was not in arrear of rent at all and that he was not aware of the decree obtained by the opposite party and that the fact of Court sale was deliberately withheld from his knowledge. He also adduced evidence showing that he filed a sun for commutation of rent, In 1949, and that in the course of that proceeding the decree -holder disclosed that he had already purchased the land. Another fact emerging from the evidence is that the Petitioner sent a sum of money in the year 1948, towards payment of rent, and that this amount was received by the decree -holder's son. The Petitioner says that he has no other land in respect of which he sent this amount. The Petitioner came to know of the fraud practised on him by the opposite party, on 17 -4 -50 and filed his application to set aside the sale on 8 -6 -50. He alleged that he had not received any notice under Rule 22 of Order 21 Code of Civil Procedure and that the processes had been fraudulently suppressed. His further allegation was that the suit holding is worth about Rs. 800/ - and that it was purchased for a very low price.

(3.) ON the question of limitation, I am satisfied, after hearing learned Counsel for the petition that the view taken by the lower appellate court is erroneous. Prior to the year 1947 applications for setting aside such sales were governed by the provisions of Order 21, Rule 90 of the Code of Civil Procedure and the period of limitation fixed for setting aside the sale was 30 days. In 1947 the Orissa Tenancy Act underwent an amendment, and by Section 228(2) a new provision was inserted enabling the judgment debtor to challenge an auction -sale within three months from the date of the sale. The lower appellate Court held that the Petitioner cannot claim the benefit of this new Section 228(2) as the sale had been held at a time when Order 21 Rule 90 of the Code of Civil Procedure governed the case.