SHYAMNANDAN SINHA Vs. NAURANGI SINGH

JUDGEMENT

(1.) This is a decree-holders second appeal against an order of reversal setting aside the sale, in an application under Order 21, Rule 90, Civil P.C., read with Section 47 of the Code. The application was filed on the usual grounds, alleging fraudulent suppression of processes in the execution proceeding, fatal material irregularities in publishing and conducting the sale, and in consequence a sale at a grossly inadequate price to the injury of the judgment-debtors. The application was not made until more than two years after the sale, but the applicants alleged that owing to the fraudulent suppression of processes by the decree-holders they knew nothing about the sale, which took place on 19 August 1941, until they heard of it for the first time from one Ram Lakhan Mander with whom the disputed land was said to have been settled by the decree-holders, on 9 September 1943.

(2.) The decree was a rent decree against two brothers, Daroga Singh and Jamuna Singh. Daroga died during the execution proceedings, and thereafter applicant 1, the eldest of Daroga's three sons (who are now the applicants), appeared through his uncle Jamuna Singh as guardian and asked that he should be substituted as his deceased father's legal representative. Thereafter, on the decree-holders application, the three sons of Daroga were substituted, but for some reason, as majors, not minors, and notice under Order 21, Rule 22, Civil P.C., was Served upon them as majors, the evidence being that the processes were presented to Jamuna Singh, the eldest member and karta of the joint family, and on his refusal to accept them or give a receipt they were hung up on the wall of the dwelling louse.

(3.) The learned Munsif held upon all points against the applicants, and refused to set aside the sale. On appeal the learned Subordinate Judge did not go into the merits of the application under Order 21, Rule 90, except to the extent of holding that the price fetched was in fact inadequate. He held that the application must succeed as one under Section 47 because of two fatal defects, with which I shall presently deal. He held that as the sale was a nullity the application would be governed not by Art. 166, Limitation Act, but by Art. 181, and was consequently within time.