SAILA BALA DASI Vs. ATUL KRISHNA MONDAL

JUDGEMENT

(1.) This rule was issued to show cause why an order passed Under Section 174 (3), Ben. Ten. Act, should not be set aside.

(2.) The material facts are as follows. The landlord instituted a suit for assessment of rent; and for recovery of rent and obtained a decree. In execution of that decree, the holding was put to sale on 21 May 1942. The sale was confirmed in the ordinary way on 22 June, 1942. On 3 July 1942, the auction-purchaser took out the sale certificate and, according to the record, obtained delivery of possession through Court on 2 March, 1943. On 12 June 1943 one of the tenant judgment-debtors filed two applications before the Court. One was an application under Order 9, Rule 13 and the other was an application Under Section 174(3), Ben. Ten. Act. In these applications he asserted that he had been kept out of knowledge both of the decree and the sale and he had come to know of both of them on 3 June 1943, The application under Order 9, Rule 13 was dismissed on 30 November 1943 and no appeal against the order of dismissal was preferred. The application Under Section 174 (8), Ben. Ten. Act was dismissed by the Court of first instance on 21 February 1944. The learned Munsif found that processes had not been suppressed, that the property had not been sold at an inadequate price, that the auction-purchaser was benamdar of one of the judgment-debtors and that the application was barred by limitation.

(3.) The applicant appealed to the Subordinate Judge. His application was allowed, the Subordinate Judge finding that processes were suppressed and that there was fraud on the part of the decree-holder, The learned Judge accordingly set aside the sale on certain conditions, The auction purchaser has moved this Court.