MAULVI AHMADUR RAHMAN Vs. SHRI ARUN SARKAR ROY

JUDGEMENT

(1.) MAULVI Ahmadur Rahman is the Appellant in both the cases. The suit out of which S.A. 69/76 arises was filed by him principally to set aside an auction sale by which his Patani rights over the suit land was sold. That sale had taken place in Case No. 59/54 -53. The setting aside of the auction sale was prayed, on the ground of fraud. The suit was decreed by the learned trial Court but it has been dismissed by the learned first appellate Court as being barred by limitation. In too other suit, which is reliable to SA 123/76, Maulvi Ahmadur Rahman was the Defendant. That suit was for eviction of the Defendant from the suit land which was the subject matter of Sale Case No. 59/54 -55. Among other pleas taken as defence, it was urged that as the sale of the property itself was, void on the ground of fraud, the Plaintiff bad acquired no title, and as such could not have instituted the suit for eviction of the Defendant.

(2.) AS a common question relating to the validity of the auction sale has arisen for determination, the two appeals were heard conjointly and a common order is passed in both the cases. The sale was challenged, as already indicated, on the ground of fraud by alleging that notices as required by Section 8 of the Bangal Patani Talug Regulation, 1819 were not quly served. A look at that provision shows that notice of bale has to be published at three places vis. (i) some conspicuous part of the Collector's Cutchery; (ii) Sadar Cutchery of the Zamindar himself and (iii) at the Cutchery or at the principal town or village and upon the land of the defaulter. The further requirement is that notice should be served on the defaulter. The concurrent finding of fact is that though there was proper service at the Collectors Cutchery, there was no proper publication of the notice is the Zamindar's Cutchery. The learned Assistant District Judge has also held that no notice was stuck up at any conspicuous place. So far as the notice on the defaulter is concerned, the Court below has found that there was violation of requirement of law in this regard. Despite this, as already stated, the suit has been dismissed holding it as beyond time.

(3.) LET it first be seen which of the two Articles, Article 99 or 113, is attracted in the present case Sri Sen has placed strong reliance on the Privy Counsil decision in Molakarjun v. Narhari, ILR 25 Bombay 337. In that case, the applicability of Article 12 of the Old Limitation Act, which corresponds to Article 99 of the new Act, was upheld as the sale was found to be irregular only and not a nullity. The notice of sale in that case had been served on one Mamlingappa as the successor to the estate of Nagappa who was the judgment debtor and against whom the decree was sought to be executed. Ramlingappa contended that he was not the right person, but the executing did not accept the contention. It was, therefore, held that own if the executing. Court committed a mistake to hold such court sale would be safe". In the present case however, int was question of total suppression of notice and in such a situation the sale has to be regarded as a nullity as pointed out by a Division Bench of this Court in Sher Ali v. Assam Board of Revenue, 1981 (1) GLR 283, Reliance is also placed by Sri Sen on Chinakaram v. Paramsiv : AIR 1927 Mad 1135. There the sale was regarded only as voidable as the decree -holder had purchased the property without court's permission enjoined by Order 21 Rule 72 of the Code of Civil Procedure. The disregard of provisions like fixing of date, time, place etc. of sale was held in Avuluisayagam v. Pitchiah. : AIR 1950 Mad 358 to render the sale as voidable and not illegal. Another decision pressed into service by Shri Sen is that of Gauri Ram v. Jalshi Ram : AIR 1950 HP 1. In that case, despite allegation of fraud the sale was held voidable as the fraud was practices on the Court in getting the sale confirmed on the very date of the sale.