NABIN CHANDRA HALDAR Vs. BIPIN CHANDRA HALDAR

JUDGEMENT

(1.) THIS appeal arises out of a suit instituted by the plaintiffs for a declaration that the sale held in: certain execution case was illegal and also for confirmation of the plaintiff's possession in respect of the land covered by the sale. The sale took place on the 22 November, 1918 and the present suit was instituted on the 21 May 1919. The defence was to the effect that the suit was barred by reason of the provisions of Section 47 of the C. P.C. and that there was no irregularity or illegality in connection with the sale. The First Court held that the suit did not lie and treated the plaint as an application under Order XXI, Rule 90, C. P.C., and dismissed, the plaintiffs suit. On appeal by the plaintiffs the Subordinate Judge has found that so far as the plaintiffs allegation was to the effect that the decree in execution of which the sale took place had been satisfied that allegation was not established. He, however, held that the processes were fraudulently suppressed in the execution case and that the property had been sold at an inadequate price in consequence of the said fraudulent suppression of processes. He found also that the plaintiffs came to know of this fraudulent sale seven or eight days before the institution of the suit and holding that the suit had been properly treated by the Munsif as an application for setting aside the sale and that the application was within time decreed the suit. The defendant appeals to this Court and on his behalf it is contended that the plaint having been filed admittedly more that 30 days from the date of the sale, the plaintiffs should have alleged fraud on the part of the decree-holder or auction-purchaser which kept them out of knowledge of the sale and by reason of which fraud they were prevented from patting in the application within 30 days from the date of the sale and also that there is no finding in the learned Subordinate Judge's judgment that there was fraud on the part of the said decree- holder or auction-purchaser by reason of which the plaintiffs were prevented from" coming to Court within such time. On behalf of the appellant reliance has been placed upon the case of Kailash Chandra Haldar V/s. Bissonath Paramanic 1 C.W.N. 67. It [was laid down in that case that when a judgment-debtor makes an application to have an execution sale set aside under Section 311 of the old C. P.C., after the expiry of 30 days he must bring his case within Section 18 of the Limitation Act and to enable him to do so, it is not enough for him to show that the execution proceedings were irregular and fraudulent but that he must carry the fraud further and show that the existence of his right to set aside the sale has been kept concealed from his knowledge by the fraud of the decree-holder or the auction-purchaser. So far as this principle is concerned there is no (dispute whatsoever. But it will be seen that in that case all that was found by the Courts below was that the sale proclamation had not been duly published | and this Court held that from that fact alone it could not be inferred that there was any fraud on the part of the decree-holder and upon the evidence the Court was also of opinion that fraud had not been established as against the decree-holder or the auction- purchaser. It has been laid down by the Judicial Committee in the case of Rahimbhoy Haribbhoy V/s. Charles Agnew Turner 17 B. 341 : 20 I.A. 1 : 6 Sar. P.C.J. 256 : 17 Ind. Jur. 40 : 9 Ind. Dec. (N.S.) 222 (P.C.) that in order to make limitation operate when a fraud has been committed by one who has obtained property thereby, it is- for him to show that the injured complainant has had clear and definite knowledge of the facts constituting the fraud at a time which is too remote for the suit to be brought. In the present case the finding of the lower Appellate Court is to the effect that processes in connection with the execution case had been fraudulently suppressed and the other finding is that the plaintiffs came to know of the fraudulent sale seven or eight days before the institution of the suit. It is not an unreasonable inference to draw from the aforesaid findings that, as a matter of fact, the fraud that had been committed in the execution proceedings continued and by reason of its continuing influence the plaintiffs were kept out of the knowledge of the sale. Although there is no clear finding in the learned Subordinate Judge's judgment on this point, in my opinion the facts found irresistibly lead to the conclusion that the plaintiffs are entitled to the benefit of Section 18 of the Limitation Act. Apart from this there, is a further difficulty in the way of the appellant and this is by reason of the fact that the plaint was treated as an application under Order XXI, Rule 90. When it was so treated there was only one appeal, allowed by law, from the order passed in it, and consequently the present appeal, in my opinion, is not maintainable. On both these grounds the appeal fails and must be dismissed with costs. Greaves, J.

(2.) I agree.