MUSAMMAT BHAGGO Vs. MATA PRASAD

JUDGEMENT

(1.) THE People's Industrial Bank held a decree against Musammat Bhaggo. In execution of this decree, two houses belonging to Musammat Bhaggo were brought to sale. THEy were sold separately. THE sale took place on the 4 January 1921. THE papers show that they were knocked down to Ram Narain who was the last bidder in each instance. Musammat Bhaggo applied under Order XXI, Rule 90 to set the sale aside. She issued notice to the decree-holder and to Ram Narain. Ram Narain took the objection that he was not the actual purchaser but that Mata Prasad was the actual purchaser. Now, it is clear that the bids were ma de by Ram Narain and that no mention took place during the auction-sale of Mata Prasad. But a ter the sale was over Ram Narain informed the Amin privately that he had actually made the bids on behalf of Mata Prasad. THE Amin made a note to that effect and Mata Prasad deposited the balance of the sale consideration in Court. It is to be noted, however, that Ram Narain paid the 25 per cent. deposit due under Order XXI, Rule 84 on the day of the sale. THE Munsif, thereupon, joined Mata Prasad, who accepted the position that he was the actual purchaser He was joined after the period of limitation had elapsed. THE Munsif set aside tie sale on the ground that Ram Narain had made false representations that the houses were heavily encumbered, in consequence of which people would not offer an adequate price for the property. He set aside the sale on this ground. In appeal, the learned Subordinate Judge dismissed Musammat Bhaggo's application on the ground that Mata Prasad should rave been joined as a party originally and that as he was not joined until after the period of Imitation had expired, the application was time- barred. In-taking this view, the learned Sub ordinate Judge is, in my opinion, absolutely in error. It is perfectly clear on facts that Musammat Bhaggo had no opportunity of knowing that Ram Narain was acting on behalf of Mata Prasad. He was acting as an agent, and was concealing the name of his principal. In these circumstances, it was only necessary for her to issue notice on Ram Narain and it was not possible for her by exercise of reasonable diligence to know that Ram Narain was acting as agent of Mata Prasad. In these circumstances, the application was not time-barred. I accordingly set aside the order of the Subordinate Judge on the ground of limitation. As Mata Prasad did not ar(Sic)ue on the merits before the Subord nate Judge the appeal should have been dismissed in entirely. I dismiss it accordingly, and restore the order of the Munsif setting aside the tale. Mata Prasad will pay his own costs and those of Musammat Bhaggo throughout.