TOOKOOMONI DASI Vs. DWARKA NATH DINDA

JUDGEMENT

(1.) WE are invited in this Rule to set aside an order whereby the Subordinate Judge has affirmed an order of the Court of first instance, refusing to set aside an execution sale. The sale took place on the 15th November 1910, and the decree-holder became the auction- purchaser. The application to set aside the sale was not made till the 10th March 1911, that is, after the expiry of the thirty days prescribed by Article 165 of the Limitation Act, 1908. It consequently became necessary for the judgment-debtor to bring his case within Section 18. In order to do this, he alleged fraud on the part of the decree-holder both before and after the sale. The Subordinate Judge has declined to consider the question of fraud antecedent to the sale and has confined his attention to the question of fraud subsequent to the sale. In our opinion, the case has not been properly considered. No doubt, it cannot be laid down as an inflexible rule of law that proof of fraud antecedent to the sale necessarily indicates continuance of that fraud subsequent to the sale. At the same time, it is clear that proof of fraud antecedent to the sale may have an important bearing in the determination of the question whether there was fraud subsequent to the sale, sufficient for the purposes of Section 18, in other words, the question of fraud should be considered as a whole. WE, therefore, make the Rule absolute, set aside the order of the Court below and remand the case to it for re-consideration. WE do not express any opinion upon the merits; in fact, the circumstances of the case have not been placed before us. The costs of this Rule will abide the result. WE assess the hearing fee at one gold mohur.