RAMSWAROOP SINGH Vs. GANESH MISSIR

JUDGEMENT

(1.) This appeal has been filed by the decree-holders and it is directed against the appellate order dated the 19th June, 1961, passed by the learned District Judge, affirming an order of the learned Additional Subordinate Judge in Miscellaneous Case No. 14/18 of 1954/1956, registered at the instance of the judgment-debtors. As a result of the disposal of the Miscellaneous Case, a sale held on the nth of December 1953, in Title Execution Case No. 3 of 1953 stands set aside. The facts of the case are as follows:

(2.) The appellants had instituted a partition suit in 1950, numbered as Partition Suit No. 150 of 1950. In the decree passed in that suit, there was a decree for costs, amounting to Rs. 280/6. The holders of the decree for costs levied execution to realise this cost in Title Execution Case No. 3 of 1953. Certain Brit Lakharaj land belonging to the judgment-debtors, measuring 23 bighas 5 kathas 15 dhufs, appertaining to khata Nos. 151 and 155, in village Khokhara was sold and purchased by the decree-holder on the nth December, 1953, for a sum of Rs. 313/14/6. The sale was, however, subject to a zerpeshgi encumbrance of Rs. 9,000/-. The decree-holder themselves were the zerpeshgidars. On the 15th of September 1954, respondent No. 1, Ganesh Missir, one of the judgment-debtors, filed an application under Order 21, Rule 90, Code of Civil Procedure, for setting aside the sale. The judgment-debtor's case was that the processes in the execution case had not been served and they Had been fraudulently suppressed, with the result that substantial injury had been caused to the applicant by the sale mentioned above. It was alleged that the judgment-debtor came to know of the sale for the first time from, the Amla of the landlord, to whom the decree-holders purchasers had gone to get their names mutated. It was further alleged in the application that after receiving information about the sale the application came to know about the fraud committed by the decree-holders, on the 17th August 1954, when the records of the execution case were inspected. It may be mentioned at this stage that according to the evidence given by the judgment-debtor, the first knowledge of the pale had been received on the 15th August 1954. The allegations of the judgment-debtor were controverted by the decree-holders and it was asserted that no fraud had been committed on the judgment-debtors and it was alleged that the- property had been sold for its proper value. It was also contended that the application filed on the I5th of September 1954 was barred by limitation. The learned District Judge has held on the merits of the case that the processes in the execution case had been fraudulently suppressed and the judgment-debtors had been kept out of knowledge? of the execution proceedings throughout. According to the learned Judge, therefore, the decree-holders had managed to have the disputed land sold for a "shockingly low value" from which an inference of fraud may be drawn. Upon the question of limitation raised on behalf of the decree-holders, the question has been decided against them, the learned District Judge holding that the onus was on the decree-holders to prove that the judgment-debtor had acquired definite knowledge of the facts constituting the fraud at a time which was too remote to allow him to make the application to set aside the sale. It has been held that the decree-holders in this case had failed to discharge that onus.

(3.) Learned counsel for the appellants, has contended that the sale in this case was, at the most, voidable, if the conclusion on merit arrived at by the Courts below cannot be disturbed, and in that case Article 166 of the Limitation Act read with Section 18 of the Act will be attracted. It is urged that on reading Article 166 with section 18 of the Limitation Act, the limitation in this case against the judgment-debtor applicant, must bet held to have begun on the 15th of August 1954, and this application filed on the 15th of September 1954 was barred by one day. According to the learned counsel, when the learned District Judge was not in a position to accept the judgment-debtor's case that he had the record of the case inspected on the 17th of August 1954, thereby coming to know of the fraud said to have been perpetrated by the decree-holders, no other advantage can be taken by the Judgment-debtor of any action subsequent to the 15th August, even if Section 18 of the Limitation Act is resorted to. Learned counsel has relied on the cases of Ramdhuri Chowdhuri v. Deonandhan Prasad Singh, ILR 2 Pat 65 : (AIR 1922 Pat 507) and Bansi Sao v. Debi Prasad, AIR 1961 Pat 508.