BIBI ASGHARI Vs. MUHAMMAD KASIM

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for setting aside a decree and the sale held in execution of that decree and also for confirmation or recovery of pos-session over the land which had been sold in execution of the decree. The decree in question was passed on 31-1-1928 in Kent Suit No. 2378 of 1927, and the sale in execution of the decree was held on 10-7-1928. The decree holders themselves purchased the property at the execution sale. The suit out of which this appeal arises was instituted on 9-7-1940 by the two appellants and by two other persons who did not prefer any appeal against the decision of the Court of first instance. The plaintiffs' allegation was that the processes had all been suppressed and that the plaintiffs were not able to know of the fraud perpetrated by the decree holders until 1-7-1939. Some of the defendants resisted the plaintiffs claim, firstly, on the ground that there was no suppression of processes and no fraud with regard to the proceedings, and, secondly on the ground that the plaintiffs' claim was barred by limitation.

(2.) The Court of first instance negatived the case of fraud set up by the plaintiffs and held that the suit was barred by limitation. There was an appeal preferred against the decision of that Court by these two appellants, but the appeal was dismissed by the First Additional Subordinate Judge of Chapra. Aggrieved by the decision of the learned Subordinate Judge the original plaintiffs 1 and 2, who were the appellants before the learned Subordinate Judge, have preferred this second appeal.

(3.) The findings of the Courts below that there was no fraud with regard to the proceedings are binding on us in second appeal, and Mr. Rahman for the appellants had nothing to say before us so far as these findings are concerned. But he strenuously pressed the contention that there was no valid decree against the original plaintiffs 3 and 4, whose interest has now been acquired by plaintiffs 1 and 2, and that the interest of plaintiffs 3 and 4 cannot be deemed to have passed to the decree holder auction purchasers by the auction sale. Mr. Rahman has further argued that the lower appellate Court is wrong in holding that the claim of plaintiffs 1 and 2 in so far as it represents the interest originally possessed by plaintiffs 3 and 4 is barred by limitation. In my opinion, the contention of Mr. Rahman is well-founded.