NITAI DUTTA Vs. GANESH MAHTO

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted to set aside an ex parte rent decree, and the sale of a holding in execution under Section 208, Chota Nagpur Tenancy Act, on the ground of fraud. The trial Court and the lower Appellate Court have found that the suit why fraudulent; that the rent had been deposited by the tenant to the knowledge of the land; and that service of processes was fraudulently suppressed in the suit and in the execution proceedings. The sale has, therefore, been set aside and the plaintiffs have been restored to possession of their holding. On the question of whether the proceedings in the suit and in the sale were vitiated by fraud, the matter is concluded by the findings of fact of the learned Subordinate Judge.

(2.) Mr. Abani Bhusan Mukharji on behalf of the auction-purchaser argues that a suit cannot be instituted to set aside a sale held under Section 208, Chota Nagpur Tenancy Act, on the ground of fraud. He relies upon the decision of this Court in Gosain Das Baishnab V/s. Gopal Singh 8 PLT 688 : 106 Ind. Cas. 430 : AIR 1927 Pat. 382. In that case an application had Deen made under Section 213, Chota. Nagpur Tenancy Act, to see aside the sale on the ground of lraud, which had been decided against the persons who subsequently attempted to institute a suit It was held that alter tills had happened, a suit could not be instituted to set aside V the sale on the ground of fraud, unless fraud or want of jurisdiction could be proved as affecting the proceedings under Section 213 of the Act. In. the same way a person who applies under Order IX, Rule 13, to set aside an ex parts decree, with the result that there is a definite ringing against him that summons has been, properly served, will find that decision acting as res judicata to bar a subsequent suit based on the allegation that service of process has been fraudulently suppressed. In the present case, it appears that the proceedings in the suit and execution did not come to the knowledge of the plaintiffs until long after the period of limitation prescribed by Section 213 of Chota Nagpur Tenancy Act had expired. The right to institute a suit to set aside a sale on the ground of fraud or want of jurisdiction is expressly saved by the provisions of Section 214 of the Act. Mr. Abani Bhusan Mukharji argues that the innocent auction-purchaser ought not to be penalised by loss of his purchased property without compensation, since there is no finding of the lower Appellate Court that he was party to the fraud. In such cases the rule laid down by the Judicial Committee of the Privy Council in Lalla Bunseedhur v. Koonwur Bindeseree Dutt Singh 10 MIA 454 : 2 Sar. 167 (PC) at p. 173 Page of 10M.T A.--[Ed.] will prevail. Sir James Colvile delivering the judgment of their Lordships observed in that case: The proposition that no digerence is to be made between an innocent purchaser and one tainted by the fraud which has brought about the execution sale seems to them to be wholly untenable. The question is, in the former case, which of the two innocent parties shall suffer; in the latter, whether he who has wronged the other party shall be allowed to enjoy the fruits of his wrongdoing, A Court exercising equitable jurisdiction may withhold its hand in the one case, and yet set aside the sale with or without terms in the other.

(3.) I do not know that it can be said that where a fraud has been proved throughout the proceedings in the suit, and in. the sale, the Revenue Officer can be said to have had any jurisdiction at all under Section 208, Chota Nagpur Tenancy Act, but if the Court had to choose between two innocent parties, I consider that there can be no doubt regarding the correctness of the decree of the Munsif in the present case. The learned Munsif was apparently considering this aspect of the case when he remarked with such scorn on the appellant's claim to consideration as to bona fide purchaser for value. The appellant purchased 15.91 acres for Rs. 150 in March 1930. He permitted the tenant to grow his crop on the land, taking delivery of possession exactly at the time when the crop was ready for harvesting. If the sale had been set aside on application under Section 212 of the Act, the auction? purchaser would have been entitled to be paid Rs. 157-8-0; but he must have realized far more than this immediately on taking possession of the holding. Any Court of equitable jurisdiction having, to decide between these parties would properly have decided as the learned Munsif decided, that the innocent raiyat was entitled to be restored to his holding. There is no merit in this appeal which must be dismissed. Dhavle, J.