BHARAMAR SENAPATI Vs. SATYABADL SENAPATI AND ORS.

JUDGEMENT

(1.) THE auction -purchaser in an execution sale which was held on 5 -12 -51 is the Petitioner before me. The judgment -debtor filed an application under Order 21, Rule 90, Code of Civil Procedure. to set aside the sale, on 9th of July, 1952 more than 7 months after the date of sale. He alleged that the sale was vitiated by material irregularities is that there was no true proclamation etc. and that the price fetched at the Court auction was quite inadequate. The auction -purchaser contended that the petition was barred by time and that there was due proclamation. Both the lower courts found that there was no proper service and proper proclamation and also held that the petition was in time and set aside the sale.

(2.) MR . K.M. Swain, the learned Counsel for the Petitioner contends that, even on the assumption that there was no proper proclamation and service of sale processes, the lower courts erred in holding that the petition was not barred by virtue of Section 18 of the Limitation Act. Article 166 of the Limitation Act is the Article which provides for time for filing of a petition to set aside the bee. Article 166 provides 30 days for a petition under the Code of Civil Procedure to set aside a sale in execution of a decree. The present sale in execution, is a sale in execution of a rent decree and under Section 228 of the Orissa Tenancy Act, the period fixed for filing an application to set aside the sale is 5 months from the date of sale. The present petition is admittedly filed more than 7 months after the date of sale and in order to be within time, the judgment -debtor most make out a case as provided for in Section 18 of the Limitation Act which runs as: