PARICHHIT SINGH Vs. DEOKI SINGH

JUDGEMENT

(1.) This is an appeal by the decree-holder against the decision of a learned Single Judge of this Court holding that the sale held on the 14th February 1953 by the executing Court was void and inoperative. The relevant facts are as follows:

(2.) The decree was obtained by the appellant on the 8th January 1951 for arrears of rent in respect of the judgment-debtors' holding bearing khala No. 14 in village Lachhmanpur. The application for execution of the decree was filed on the 25th July 1951 in the Court of the Munsif, Third Court, Arrah, which had passed the decree. That Court, on the 27th July 1951, passed an order transferring the execution case to the Court of the First Additional Munsif at Arrah, which was known as the Court of the Execution Munsif. The order of transfer was made in pursuance of a Standing Order of the District Judge for transfer of such execution cases to the Court of the First Additional Munsif at Arrah. The decree-holder, in the first instance sought to proceed against plot No. 30, which is one of the plots appertaining to khata No. 14, and the usual processes, including the notice contemplated by Section 158-B (2) of the Bihar Tenancy Act, were issued and served upon the judgment-debtors on the 14th August, 1951. Thereafter, the sale proclamation was also issued fixing the 10th December 1951 for conducting the sale. But the sale could not be held for want of bidders. Thereafter, on the 25th January 1952, the decree-holder applied for amendment of his execution petition by substituting plot No. 47 (another plot appertaining to khata No. 14), in lieu of plot No. 30, and sought to execute the decree against plot No. 47. This prayer for amendment was allowed on the 21st February 1952 and the usual processes of attachment and sale proclamation were thereafter issued. But again the sale could not be field for want of bidders and the decree-holder had to file fresh requisites on the 9th July 1952 In due course, the sale was held on the 14th February 1953 and plot No. 47 was purchased by the decree-holder for Rs. 400/-, subject to certain encumbrances which had duly been notified in the sale proclamation. On the 16th March 1953, the sale was confirmed, and this was followed by delivery of possession on the 21st August 1953. More than four years thereafter, there was a proceeding under Section 144, Code of Criminal Procedure, between the parties, in which a restraint order was made against the judgment-debtors on the 3rd April 1958. On the 12th May 1958, the judgment-debtors filed an application before the executing Court for setting aside the auction sale held on the 14th February 1953, on the usual grounds of suppression of execution processes and substantial injury and alleging that on that account they were kept out of knowledge of the execution proceedings until they learnt about it on the 5th May 1958. The prayer for setting aside the sale was made upon the fooling that the sale was void and inoperative and, therefore, the application for setting aside the sale was governed by Article 181 of the Limitation Act, 1908, which gave the judgment-debtors a period of three years for making the application, computed from the date of their knowledge, whereby their right to apply accrued.

(3.) The application was resisted by the decree-holder who maintained that the execution processes had been duly issued and served and that the judgment-debtors had full knowledge of the proceedings and the execution sale, which was by no means void or inoperative. It was further alleged that the application for setting aside the sale was barred by limitation since it was governed by Article 166 of the Limitation Act, 1908, which provides a period of thirty days from the date of the sale for the purpose of making an application for setting aside the sale held under the Code of Civil Procedure.