VENKATARAMA AIYAR Vs. PARAMASIVA AIYAR

JUDGEMENT

(1.) This suit was brought for a declaration that the decree in O.S. No. 731 of 1917 on the file of the District Munsiff of Chidambaram was null and void and that the sale held in execution of the decree in the Small Cause Suit No. 658 of 1917, was also null and void. The grounds on which this declaration was asked for, were that those concerned in the sale, the judgment- debtor, Alamelu and the purchaser, her brother, 3 defendant, had combined in a fraud, the main element of which was the allowing O.S. No. 374 of 1917 to be brought and decreed Collusively, that decree being in force at the time of the Court sale and deterring possible bidders, but being set aside again collusively later, the cloud on the title to the properties sold being thus removed from it in the interest of the third defendant.

(2.) The first objection and the objection mainly considered by the lower Courts is that this fraud should have been brought before the Court by a petition under Order XXI, Rule 90, Schedule I of the Civil P. C. for the setting aside of the Court sale on the ground of fraud in publishing or conducting it. We cannot follow this. The fraud alleged was constituted by the collusion which enabled the decree in O.S. No. 734 to be passed and set aside. The publication, - for no separate argument has been addressed to us as regards the conduct of the sale, - consisted for the present purpose in the settlement of the terms of the sale proclamation. In that settlement, we have not been shown that any term was included in the sale proclamation which was not literally in accordance with fact. The proclamation contains a reference to the charge imposed by the decree in O.S. No. 734. It further contains a, reference to the objection of the decree-holder (now 1 defendant), at whose in stance the proclamation was being issued, to the previous decree as fraudulent. It is difficult to say what more could have been included in the proclamation : and in any case we should be unable to hold that the. judgment-debtor, the 2nd defendant, has been shown to be responsible for that part of the proclamation. In these circumstances, we agree with the lower Appellate Court that a petition under Order X XI, Rule 90, was not the plaintiff's proper remedy, and that a suit was open to them.

(3.) it is next urged that, even it the fraud alleged in the plaint is established, it will not be a ground on which the sale can be set aside. We postpone discussion of that contention, until we have before us the result of the remand, which we are about to direct in order to obtain a finding of fact as to the fraud, if any, which is proved.