CHINTAMONI MOHARANA Vs. KRUSHNAPARSAD SINGH

JUDGEMENT

(1.) In this Civil revision the petitioners are certain judgment-debtors who were unsuccessful in both the Courts below in their application under Section 228(2) of the Orissa Tenancy Act (Bihar and Orissa Act II of 1913) for setting aside a sale on the ground of alleged material irregularity or fraud in publishing or conducting a sale of a tenure or holding for alleged arrears of rent due thereon. This revision is directed against the order made by the learned Additional District Magistrate, Cuttack in Execution Appeal No. 25 of 1956-57 dismissing the said appeal from an order made in Execution Case No. 1092 of 1953-54 by which the Rent Suit Deputy Collector dismissed the petitioners' said application under Section 228(2) of the Orissa Tenancy Act on his finding that the application was time-barred.

(2.) The matter arose in these circumstances: By a registered kabala dated August 4, 1931, the petitioners purchased certain properties mentioned in the said Kabala from One Panu Sahu. Thereafter, by another registered Kabala dated March 3J, 1934, the petitioners purchased certain other properties from one Bimbadhar Sahu. It is stated that the area of the land purchased is A.O. 37 decimals and the market price thereof is not less than Rs. 500/-. The petitioners used to pay rent and had obtained rent receipts from the landlord in respect of the rents that they were paying to him. In 1951/1952 a rent suit against the vendors of the petitioners was filed by the landlord being opposite party No. 2 ignoring the purchases made by the petitioners under the said Kabalas. The suit was decreed against the vendors of the petitioners for alleged arrears of rent. Thereafter there was the said execution case being Execution Case No. 1092/ 1953-1954 purported to be in execution of the said decree against the said vendors defendants in the said rent suit for realisation of the arrears of rent for the years 1954-1955, 19551956, 1956-1957 and 1937-1958. The present petitioners, however were not made parties in these execution proceedings and it is alleged that all these proceedings, in the rent suit as also the execution case, were all behind the back of the present petitioners. On August 14, 1954 the property in suit was sold in execution case for a petty sum of Rs. 23/- only and the opposite party no. 1 purchased the same property as auction purchaser. On November 20, 1954 the petitioners made an application for setting aside the sale under Section 228(2) of the Orissa Tenancy Act (Bihar and Orissa Act II of 1913) read with Section 18 of the Limitation Act. On the facts of it the said application made on November 20, 1954 for setting aside the sale under Section 228(2) Orissa Tenancy Act was out of time by four days, -- the period of limitation being three months from the date of the sale, that is August 16, 1954 which expired on November 16, 1954. The petitioners sought to take protection under Section 18 of the Indian Limitation Act (IX of 1908) on the ground of alleged fraud. The Rent Suit Deputy Collector dismissed the said application as "prima facie time-barred" finding that the applicants had failed to prove fraud. In appeal, the learned Additional District Magistrate as Collector under the Orissa Tenancy Act confirmed the decision of the Rent Suit Deputy Collector. Hence this revision.

(3.) It appears from the judgment of the Rent Suit Deputy Collector and the Additional District Magistrate that they both proceeded on the basis that there was no fraud under Section 18 of the Limitation Act and hence they took the view that the application was barred by limitation. Mr. D. Singh, learned Counsel for the petitioners, contended that the petitioners were only out of time by four days. His main contention was that it was by reason of suppression of fact and consequent fraud played on the petitioners that the petitioners did not know either of the rent suit or of the execution proceedings thereon. In this context the learned Counsel referred to Exts. 3 and 4 being the rent receipts, stated to have been given to the petitioners on behalf of the landlord by his dismissed Tahasildar. Ext. 3 is a rent receipt dated March 3, 1952 and Ext. 4 is a rent receipt dated April 15, 1953. It is thus clear that rents were being paid by the petitioners to the landlord during 1952 and 1953. It gives rise to suspicion that the rent suit was filed by the landlord against the vendors of the petitioners ignoring the purchase by the petitioners from the said vendors by the said Registered Kabala dated August 4, 1931 and March 31, 1934. In view of the order of remand in this revision, the Court does not express any opinion on merits. The allegation is that there was a fraud played in the petitioners keeping them in the dark as to what was taking place in the rent suit and in the execution proceedings. Section 18 of the Indian Limitation Act reads as follows:- Effect of fraud,