BRAJABALA DAS Vs. RADHA KAMAL DAS

JUDGEMENT

(1.) PETITIONER Brajabala (auction-purchaser) is the wife of opposite party No. 2 radha Kumuda Das (one of the judgment-debtors), who is the elder brother of opposite party No. 1 Radha Kamal Das (the other judgment-debtor ). Opposite party No. 3 is the decree-holder. Both the judgment-debtors received notice under Order 21, Rule 22, C. P. C. in execution Case No. 62 of 1954 in the Court of the Munsif Balasore, arising out of a money suit No. 1277 of 1941 of the court of the Munsif, Kendrapara. Judgment- debtors took no steps. The disputed property was attached on 18-7-54. They received valuation notice and filed no objection. Sale-proclamation was issued on 21-9-54. Opposite Party No. 2 applied for instalments which were allowed. He paid rs. 700 in six instalments in between 16-7-55 and 30-4-56. Thereafter he defaulted. The total decretal dues were Rs. 1284-9-0. There remained thus a balance of Rs. 500 and odd out of the decretal dues, without payment. A fresh sale-proclamation was issued on 20-11-59. It was published in the daily prajatantra on 26-12-59 and also at the site by beat of drums. The sale took place on 15-1-60 and the property was purchased by the petitioner who was the sale bidder at the auction sale. The sale was confirmed on 19-2-60. Possession of the lands was delivered to the auction-purchaser on 1-8-62. Opposite Party No. 1 filed an application under Order 21, Rule 90, C. P. C. on 11-4-64 for setting aside the sale. In the application it was alleged that the decree-holder in collusion with the auction-purchaser and her husband fraudulently suppressed the sale-proclamation which was not published at the site and that opposite party No. 1 had no knowledge of the sale as a result of such fraud and consequently he was unable to make an application under Order 21, Rule 90 in time. He accordingly invoked the protection of Section 17 of the Limitation Act, 1963 (hereinafter referred to as the new Act.)Opposite parties 2 and 3 did not contest. The petitioner contested the application saying that there was no material irregularity or fraud in publishing the sale-proclamation and that opposite party No. 1 was not entitled to invoke the aid of section 17 of the new Act. The learned Munsif held that fraud was not established and the application under order 21, Rule 90 was barred by limitation. The learned Subordinate Judge in appeal held that a valuable property worth Rs. 7000 was sold for a grossly low value of Rs. 900 that there was fraudulent suppression of the sale-proclamation at the instance of opposite party No. 2 and that the application was within time as opposite party No. 1 was entitled to the protection of Section 17 of the new Act. He accordingly set aside the sale. Against the judgment setting aside the sale, the civil revision has been filed.

(2.) THERE is no dispute that a valuable property containing houses, orchard and two tanks upon an area of 2. 75 acres and odd of land within the municipal area of balasore town by the side of the main road, has been sold for a shockingly low sum of Rs. 900 in an auction sale where the auction-purchaser, wife of one of the judgment-debtors was the sale bidder. The learned lower appellate court has found that the sale-proclamation was not published in the locality. Order 21, Rule 90, C. P. C. , so far as relevant, runs thus: where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to a share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it; provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. The finding of the Subordinate Judge that the sale-proclamation was not served at the site is a pure finding of fact which cannot be disturbed in revision. If the finding is accepted, clearly there was material irregularity in publishing the sale. There is also no dispute that Opposite Party No. 1 sustained substantial injury on account of sale of a valuable property at a shockingly low price. This, injury was caused to him by reason of the irregularity. On the aforesaid analysis the sale is bound to be set aside under Order 21, Rule 90, C. P. C. even if fraud in publishing the sale is not established. Mr. Rath does not accordingly assail the conclusion of the lower appellate court that the sale is liable to be set aside under Order 21, Rule 90, C. P. C.

(3.) UNDER Article 166 of the Limitation Act, 1908 (hereinafter referred to as the Old act), the period of limitation to set aside a sale in execution of a decree including any such application by a judgment-debtor was thirty days from the date of the sale. The sale having taken place in 1960, Article 166 of the Old Act applied and the application under Order 21, Rule 90, C. P. C. having been filed on 11-4-64, about four years after, is barred by limitation unless time is saved under Section 17 of the New Act.