SARI DIBYA Vs. JAIRAM BEHERA

JUDGEMENT

(1.) The auction-purchaser in an execution sale is the petitioner in this Civil Revision directed against an appellate order of the Additional District Magistrate, Cuttack, in execution appeal No. 22 of 1956-57 whereby he, -- in reversal of the order of the Rent Suit Deputy Collector, --set aside the sale in execution on the ground of fraud on an application under Section 228(2) of the Orissa Tenancy Act (Bihar and Orissa Act II of 1913).

(2.) The matter arose thus: In a certain execution case being Execution Case No. 414 of 1952- 1953 the Rent Suit Deputy Collector put to sale the properties of the judgment-debtors being opposite parties Nos. 1 and 2 herein. On March, 15, 1954 the present petitioner in revision purchased the property being 0.48 cents in area for a sum of Rs. 25/- in the said execution auction sale. On July 14, 1954 the judgment-debtor opposite party No. 1 filed an application for setting aside the sale on the around of fraud under Section 228(2) of the Orissa Tenancy Act. The broad allegations of the alleged fraud were that the said judgment-debtor did not come to know of the said sale until July 3, 1954. He further alleged that the peon did not go to the locality and that his report was not correct. On 22-11956 the Rent Suit Deputy Collector dismissed the said application for setting aside the sale holding that the sale notices were duly served and that the applicant failed to prove the alleged fraud in the service and further that the applicant was not entitled to the privilege allowed under section 18 of the Indian Limitation Act, On appeal, from the said order, the learned Additional District Magistrate on January 25, 1958 allowed the appeal holding that the application had been filed in time and accordingly set aside the said order of the Rent Court Deputy Collector. Hence this revision.

(3.) Mr. R.N. Sinha, learned counsel appearing for the petitioner auction- purchaser contended that no particulars of fraud having been alleged or proved and further there having been no finding of fraud by the learned Additional District Magistrate in appeal against the auction-purchaser, --the judgment- debtors could not take shelter under section 18 of the Limitation Act. Section 18 of the Limitation Act reads as follows: