RAMESH CHANDRA PATRANABIS Vs. BIRAJASUNDARI GUPTA

JUDGEMENT

(1.) This second appeal arises in connexion with execution proceedings and is by the auction- par-chaser in execution of a decree for rent by the landlord against 65 tenants. The tenure was sold on 24 July 1922 in execution of the decree. On 21 August. 1922 two judgment- debtors, Manoranjan Dhar and judgment-debtor No. 55, filed an application to have the sale set aside. That application was dismissed on 4th, April 1923. The sale was then confirmed and symbolical possession delivered to the auction purchaser on 27 February 1924. On 27th March 1924 the respondent, judgment-debtor No 56, filed an application under Order 21, Rule 90 and under Section 47, Civil P.C. to have the sale set aside on the ground of irregularities and fraud. The Munsif in the execution Court overruled all the objections to the sale made by the respondent and dismissed her application. He found that the application was barred by limitation, that the sale processes were properly served and that though the properties were not sold at adequate prices there was service of notice on the respondents under Order 21, Rule 66 and the defect was cured. On appeal the learned Subordinate Judge found that the previous application for setting aside the sale made by Manoranjan and another was collusive, that the sale-processes were fraudulently suppressed and that the respondent had sustained substantial injury in consequence thereof. As to limitation, the learned Subordinate Judge held that he was satisfied on the petitioner's evidence that she had no knowledge of the sale until there was delivery of possession to the auction-purchaser. He further found that the property sold also belonged to a deceased defendant and to some other defendants against whom no decree was passed and as there was no determination of the extent of the shares those defendants he set aside the entire sale.

(2.) Two points have been urged before us in appeal on behalf of the appellant. The first is that there is no sufficient finding by the Subordinate Judge to bring the case under Section 18, Lim. Act, and, therefore, the respondent's application must be held to be barred by limitation. It is argued that the Subordinate Judge has not found that it was on account of the fraud of the decree-holder or the auction-purchaser that the respondents were kept out of the knowledge of the sale and that under Art. 166, Lim. Act, unless time is extended by the operation of Sec. 18 of that Act, the period within which such application should be made must be counted from the date of sale. No doubt the Subordinate Judge has not said in so many words that it was due to the fraud of the decree-holders that the respondents were kept out of the knowledge of the sale. But reading the judgment of the learned Judge as a whole one can have no doubt that that was what he meant to find. He first discusses the evidence with regard to the service of the various sale-processes and comes to the conclusion that there was fraudulent suppression of the writs of attachment and sale proclamation as well as of the other processes in execution; and then, in considering the question of limitation, he observes that the evidence adduced by the appellant for proving applicant's knowledge of the sale is of the most worthless kind and it bears the stamp of concoction. After considering the evidence the learned Subordinate Judge enters his finding on this point in these words: I am satisfied from the petitioner's evidence that she had no knowledge of the sale until there was delivery of possession to the auction-purchaser. I find accordingly that the application is not barred by limitation.

(3.) Beading the two findings together it is manifest that what the Subordinate Judge means to say is that there was fraudulent suppression of sale processes by the decree-holder and consequently the petitioner before him was kept out of the knowledge of the sale. But it is argued by the learned advocate appearing for the appellant that the Subordinate Judge has wrongly, placed the onus of proving the petitioner's knowledge upon the decree-holder or the auction purchaser. This contention, must be overruled, in view of the decision of the Judicial Committee in the case of Rahimbhoy Habilbhoy V/s. Turner (1893) 17 Bom. 341, where their Lordships in essence held that where fraud is committed by any party it lies upon him to show that the other party had a clear and definite knowledge of the facts constituting fraud at a date beyond the statutory period. The principle in this case has been followed in this Court in execution proceedings in the cases of Arjun Das V/s. Gunendra Nath Basu [1913] 18 C.W.N. 1266 and Bhusan Mani Dasi V/s. Profulla Kristo Deb A.I.R. 1921 Cal. 251. The objection on the ground of limitation must accordingly fail.