BIRESWAR GHOSE Vs. PANCHCOURI GHOSE

JUDGEMENT

(1.) The subject-matter of this lit gation is a tract of laud which was taken by the ancestors of the plaintiffs, on the 18 May 1879, in Mourasi Mokarari tenancy right from a family of Ghoses. The plaintiffs, like their predecessors, were in possession by payment of rent to their landlords till they were dispossessed on the 13 February 1917, by the first defendant who obtained delivery through Court on the allegation that he had purchased the land on the 21st November 1916, in execution of a decree; for arrears of rent. The plaintiffs made an ineffectual attempt at resistance, and their objection was rejected by the Court on the nth June 1917. On enquiry they ascertained what had happened to their tenancy, and the facts they discovered may be briefly narrated at this stage.

(2.) In 1904, the Ghoses sued the plaintiffs for arrears of rent, and obtained an ex parte decree for Rs. 2-2-0. No further details are available, as the records of the rent suit have been destroyed in accordance with statutory rules. No application for execution of this decree appears to have been made till the 2 August, 1907 when proceedings were instituted for realisation of the decretal amount and Rs. 3-3-0 as costs. A, sale was held on the 21st November 1907 when one Behar Lal Das, since deceased, was the sole bidder present and purchased the tetrancy for a sum of Rs. 22. The sale was confirmed on the 30 January 1908. The purchaser, however, never obtained delivery of possession through Court and never paid rent to the landlords. The result was that on the 14 April 1913, the Ghoses instituted a suit against Soudamini Dasi, widow of Behari Lal Das, for recovery of Rs. 15-7-6 as arrears of rent for four years from 14 April 1909 to 13 April 1913. The suit was decreed ex parte on the 24 June 1913. A sale was held on the 21 November 1910, when Bireswar Ghose, now appellant before us, became purchaser of the tenancy for a sum of Rs. 50. The sale was confirmed in due course; and when the purchaser went to take possession, he came into , conflict with the plaintiffs, as already stated. The plaintiffs thereupon instituted this suit, on the 31 May 1918, for recovery of possession of the disputed land upon car cellation of the ex parte decrees and consequent execution sales, on the allegation that they had been brought about by fraud on the part of the Ghoses. According to the plaintiffs the fraud cons sted in the suppression of all notices in the suits and in the execution proceedings and the submission of false returns of service to the Court. The plaintiffs further suggested that the ostensible purchaser was, on each occasion, a creature of the Ghoses who had managed to purchase a valuable property for an insignificant price. The Ghoses, the purchaser at the second sale, as also the widow of the purchaser at the first sale, were all joined as defendants. The claim was, however, contested, on paper at any rate, by the second purchaser alone. He repudiated the charge of fraud and maintained that he had made the purchase on his own account. The Court of first instance held that the charge of fraud was not established by the evidence and dismissed the suit. Upon appeal, the Subordinate Judge has reversed that decision. He has held that the suits aid execution proceedings were fraudulent, that all notices were suppressed both in the suits and in the execution proceedings, and that false returns of service were submitted to the Court, by the officers concerted. In this view, the Subordinate Judge has held that the decrees and soles must be vacated and the property restored to the plaintiffs. On the present appeal, the second purchaser has urged that he is a bona fide, purchaser for value without notice and is entitled to retain the property, even though the suits and execution proceedings be held to have been fraudulent, la support of this proposition, reliance his teen placed upon the decision in Chitambar V/s. Krishnappa 26 B. 543 : 4 Bom. L.R. 249. The plaintiffs respondents have controverted this position, and have further contended that the defence of purchase for value without notice, even if available, should have been specifically alleged and proved. In support of this proposition, reference has been made to Attorney- General V/s. Biphosphated Guano Co. (1879) 11 Ch.D. 327 : 49 L.J. Ch. 68 : 40 L.T. 201 : 27 W.R. 621 and In re Nisbet & Pott's Contract (1906) 1 Ch. 386 at P. 395 : 75 L.J. Ch. 238 : 54 W.R. 286 : 22 T.L.R. 233 : 94 L.T. 297. We have not thought it right to overrule the plea of defence of purchase for value without notice on the ground that the question was not specifically raised in the pleadings or in the issues; the defect may be remedied, if necessary, by a remand on terms. As to costs, specially as the defence has sometimes been entertained, when it has been pleaded in substance arid is a just inference from the facts alleged; Taylor v. Blakelook (1886) 32 Ch.D. 560 at P. 565 : 56 L.J.Ch. 390 : 55 L.T. 8. We shall consequently examine, whether the defendant has a substantial answer to the claim.

(3.) It may be stated et the outset that in a long line of cases in tins Court the view has Been maintained that an execution sale which has been brought about by fraud of the decree- holder, is liable to be set aside on that ground, by application to the Execution Court, even though it is not established that the auction-purchaser has participated in or: has been cognizant of the fraud. Thus, in Khirode Sundari Debi V/s. Jnanendra Nath Pal 6 C.W.N. 283, it was ruled that a judgment-debtor is entitled, by an application under Section 244 of the Civil Procedure Code of 1882, to have an execution sale of his-properties set aside, if he alleges and proves fraud on the part of the decree-holder, though no fraud is alleged or proved against the auction-purchaser who is a stranger to the suit. Maclean, C.J, treated this proposition as well-settled by the decisions in Nemai Chand Kanji V/s. Deno Nath Kanji 2 C.W.N. 691; Rojoni Kant Bagehi V/s. Hossain-ud-din Ahmed 4 C.W.N. 538 and Him Lal Ghose v. Chundra Kant Ghose 26 C. 539 : 3 C.W.N. 403 : 13 Ind. Dec. (N.S.) 946. Banerjee, J., referred in addition to the decision in Bhubon Mohan Pal V/s. Nunda Lal Dey 26 C. 324 : 3 C.W.N. 399 : 13 Ind. Dec. (N.S.) 811 and assigned the following reason in support of his conclusion; "The sale: in execution of a decree is brought about by the instrumentality of the Court; the Court being set in motion by the decree-holder. If the decree-holder is guilty of fraud in the conduct of the sale the process of the Court must be held to have been abused by him in bringing about the sale; and it cannot be said that a sale obtained through the abuse of, the process of the Court by the fraud of the decree-holder who set the Court in motion, should be upheld, merely because the auction-purchaser is innocent of the fraud. The auction- purchaser, of course, is entitled to have the purchase-money paid by him refunded by the decree-holder; but he cannot insist upon a sale brought about by fraud practised upon the Court and by the decree-holder being maintained." Banerjee, J., adhered to this view in Hungsha Majillya V/s. Tincowrt Das 8 C.W.N. 230, when he was pressed with the decision in Mokesh Chandra Bagchi V/s. Dwarka Nath 24 W.R. 260, in which it had been held that, however fraudulent the conduct of a plaintiff in a suit may be, if the purchaser is not implicated in the fraud the validity of the sale cannot be affected by the badness of the decree in execution of which the sale took place. Banerjee, J., observed that ever ii this were conceded, a different rule should hold good where cot only the decree but the execution proceedings are fraudulent. "If the sale is brought about fraudulently, that must be a Sale brought about by abusing the process of the Court; and such a sale would be invalid, quite irrespective of the validity or invalidity of the decree, and the auction-purchaser cannot be entitled to maintain his purchase, notwithstanding that the proceedings by which he became a purchaser were fraudulent." This view was followed in Ambika Prasad Singh V/s. Whilwell 6 C.L.J. 111, which dissents from Abbubaker Sahib V/s. Mohidin Sahib 20 M. 10 : 7 Ind. Dec. (N.S.) 7, and refers to Adhar Mani Dassi V/s. Monmotha Nath Bose 6 C.W.N. 279, On the other hand, where the scope of the fraud is limited to the suit and does not pervade the execution proceedings as well, it has been held that an innocent purchaser, not a party to the fraud nor apprised thereof before he paid his money, would be protected: Bishun Chand V/s. Bijoy Singh 11 Ind. Cas. 399 : 13 C.L.J. 588 : 15 C.W.N. 648 : 8 A.L.J. 587 : 13 Bom. L.R. 440 : (1911) 2 M.W.N. 418 : 21 M.L.J. 952 : 10 M.L.T. 335 (P.C.); Radha Madhan Paikara V/s. Kaltataru Roy 14 Ind. Cas. 111 : 17 C.L.J. 209.