UMAR Vs. MOTI CHAND

JUDGEMENT

(1.) These are two miscellaneous second appeals arising out of applications made by the appellant under Order 21, Rule 90, Civil Procedure Code.

(2.) The landlords-respondents filed two rent suits, being Rent Suits Nos. 1876 and 1886 of 1936, against the appellant and the other members of his family including the uncle and the brother of the appellant; the appellant was at that time a minor. The decrees in these two rent suits were executed in 1937, the execution cases being 1537 and 1535 of 1937. In one case the holding consisting of ll bighas 3 kathas and in the other consisting of 2 bighas and 13 kathas were sold for Rs. 271/3/- and Rs. 159/12/- respectively on 14-7-1938 and were purchased by the landlords-decree-holders. Some of the lands purchased were settled by the landlords, respondents 1st party, with the respondents 2nd party, and respondents 3rd party are the uncle and brother of the appellant. These applications under Order 21, Rule 90 were filed by the appellant on the 24th January 1947, the date of knowledge of the sale having been given in the applications as the 21st January 1947. In the applications it was alleged that the summons in the rent suits were served fraudulently and surreptitiously in collusion with the peon of the Court and the same allegation was made in regard to the service of the notice in the execution proceedings as also in the proceeding for delivery of possession. In regard to the service of notice upon the guardian-ad-litem of the appellant, there is no specific denial in the applications. All that is mentioned in the applications is that "as it appears the opposite first party brought the petitioner's guardian also in their collusion and concert and did not allow him to take a proper legal action." It is also alleged, that the value put upon the properties in the sale proclamation was not fair and that the opposite first party fraudulently did not allow any fair valuation to be fixed out of ulterior motive. The appellant alleged in his petitions that he had "now attained age of majority", no specific date of attainment of majority is mentioned. There is no specific allegation in the petitions to bring the case within Section 18 of the Indian Limitation Act to the effect that the appellant by means of fraud had been kept out of knowledge of his right to make an application.

(3.) The first Court held that the petitioner and members of his family had knowledge of the sale many years before the applications in question were filed and at page 14 of the brief there is a specific finding that the applicant got knowledge about the execution cases in question in the year 1938 and that the other members of the family of the appellant had also knowledge about the execution cases in the year 1938. It was also found that there was no evidence given by the appellant that there was any fraud by the decree-holders by which he was kept out of knowledge of his right to apply for setting aside the sale. In regard to the irregularities, the Court held that there was material irregularity in publishing and conducting the sale. As regards, the Court held that the price fetched at the sale was shocking to the conscience of the Court and that the appellant had suffered substantial injury. Although the properties in each of the two execution cases were valued in the applications at Rs. 2,000/- each, the Court found that the value of all the properties covered by the two sales could not be less than Rs. 20,000/-. It appears from the judgment of the 1st Court that on some of the lands sold there were big houses, but these houses were mostly in delapidated condition, and, in view of the prices of lands having gone up very high at about the time when the Court was considering the value of these properties, it appears the Court put the valuation at Rs. 20,000/-. The question whether the decrees for rent were rent decrees or money decrees and whether or not the appellant was in possession even after the delivery of possession was not considered by the Court because in its view these questions were outside the scope of a proceeding under Order 21, Rule 90, Civil Procedure Code. In view of the finding that tile applications were barred by time, the sales were not set aside and the application were dismissed. The appellant went up in appeal against the order rejecting his applications, and the appeals were finally heard by Mr. P.K. Nag, the learned Additional District Judge of Muzaffarpur. It appears from his judgment that only two questions were pressed before him in appeal -- the one being whether the applications were barred by limitation on the date they were presented, and the other, whether the sales were vitiated by fraud and irregularities which resulted in substantial loss to the applicant. The learned Judge has found that since three or four years before the applications in question were made, the appellant was looking after his affairs and that, before that period, his brother "Saddique used to look after the affairs and that the lands were in joint management of his brother Saddique and his uncle Rahmu. It has been found that Rahmu did appear in the execution cases on the 7th of April 1938, and by his petition of that date prayed that the sale be kept on hammer till the 20th April 1938, which application, however, was rejected. It has been found that Saddique and Rahmu had full knowledge of the execution and sales many years before the present applications were filed. It has further been found that the appellant attained majority some time in the year 1939 and that: "Umar, the applicant, had full knowledge that the disputed properties had been sold in execution of rent decrees many years before he had filed the present applications." This finding is based upon a consideration of the evidence to the effect that in 1938 there was one execution case, No. 47 of 1938; filed by one Mahabir Lall, the decree-holder, against Md. Saddique and other judgment-debtors including the appellant and that claim cases had been filed by several members of the family of the appellant and one was filed on behalf of the appellant himself, being Miscellaneous Case No. 69 of 1938. In Miscellaneous Cases 24 and 25 of 1938 filed by some of the ladies of the family of the appellant, copies of the petitions by Rahmu filed on the 7th of April 1938, had been filed. Then again in the year 1941 one Sheoprasad Chaudhury, a creditor of Saddique and the appellant Umar, had attached the disputed lands which had been sold in Execution Case No. 882 of 1941. Jagesher Lall, respondent 2nd party, the settlement-holder from the landlords-decree-holders had filed a claim case alleging that some of the properties sold in Execution Case No. 882 of 1941 belonged to him on the strength of the patta executed in his favour by the landlords who had purchased these holdings comprising the lands, the subject-matter of the claim case, in rent execution sales in Execution Cases Nos. 1537 and 1535 of 1937. There was other evidence to show that the appellant had also direct knowledge of the sales in June 1946 and, upon these findings, the learned Judge held that the applications were barred by time on the date when they were made. In regard to the service of notices, it was held that these notices in the execution cases were duly served on Rahmu and Saddique and the attachment and the sale proclamations were also proved. In regard to the service of notice on the guardian, it was held that no attempt was made to produce in Court the said guardian-ad-litem who was still then practising as a Pleader in the Kajipur Courts. The Court observed that, even conceding that there was no service of notices on the said guardian-ad-litem, it was a mere technical irregularity inasmuch as it was an admitted fact that the uncle and brother of the appellant were adult members of the family who had been looking after and managing the property on behalf of the applicant as well. In view ol these observations, the Court held that there was no fraud or material irregularity in publishing or conducting the sales. It, is to be noted, as I have said, that there is no allegation in the two petitions under Order 21, Rule 90, C. P. C., that the guardian-ad-litem of the appellant had not been duly served with the necessary notices in the execution cases. The allegations in the applications, on the contrary are that the guardian had been in collusion with the decree-holders, which impliedly showed that service of notice had been effected upon the guaraian. In regard to the valuation of the properties, the learned Judge appears to think that the prices for which these lands were sold were not grossly inadequate because, in his view, at the time when these sales had taken place, there used to be no purchasers of holdings in rent sales and that fact had brought down the prices and that it had be-come the habit of the landlords, while executing rent decrees, to value the holdings according to the value of their decrees and that was what was done in the present cases. It was held that because, Rahmu, the seniormost raiyat of the holding, had appeared in both the cases and wanted time to pay the amount of the decree, it was impossible to hold that, if there was any undervaluation, it was the result of any fraud on the part of the decree-holders. In view of these findings, the lower appellate Court dismissed the appeals.