JAGDEO Vs. UJIYARI KUNWAR

JUDGEMENT

(1.) The second appeal 1112 of 1926 is filed against the same order of the lower appellate Court which is under revision in this application. An appeal will not lie. Ram Sewak, judgment-debtor, applied under Order 21, Rule 90 to have the sale set aside on the ground of fraud and irregularity and the trial Court granted the application. Such an order is appealable under Order 43, Rule 1(J). The conclusion, therefore, is that in a case like that the adjudication is treated as an order and not as a decree under Section 47, Civil P.C.

(2.) The matter, however, may be considered in revision. It was pointed out by the learned Counsel for the respondent that this Court had no jurisdiction under Section 115, as the lower appellate Court had jurisdiction to decide illegally if it chose and that further there was no material irregularity in the exercise of its jurisdiction. In my opinion there was material irregularity in the exercise of the jurisdiction by the lower appellate Court because after arriving at a conclusion in every way favourable to the applicants, it proceeded to hold that the provisions of Section 18, Lim. Act, did not apply. He, in fact, held that he had no jurisdiction to entertain the application as it was barred by time. He misapprehended the object of the application which was to have the sale set aside and not to prove particularly any fraud of the auction-purchaser. In substance the lower appellate Court held that the sale would have been set aside had it jurisdiction to interfere. In my opinion he had jurisdiction and wrongly denied it. It is obvious that the decree-holder's karinda was paid and in spite of this he proceeded to sell the judgment-debtors property and took steps so that no notice of the sale may reach the judgment-debtor. There is no rule that under Order 21, Rule 90, the fraud proved should be that of the purchaser. In considering an application under Rule 90 that fact should be kept in mind. It was urged that to permit an application under Section 90 to be filed after due date, some fraud of the purchaser ought to be proved. I do not agree. The fraud of the decree holder would be sufficient because the applicant desires relief not against the purchaser alone but also against the decree-holder. Incidentally of course the sale of the purchaser is set aside and so far the purchaser is deprived of the advantage of a bargain made by him.

(3.) In the present case the decree-holder has obtained an advantage as well in executing the decree which really had been satisfied. It must also be remembered that the purchaser made considerable delay in applying for possession and thereby was accessory to the fraud committed by the decree-holder. Under these circumstances I am of opinion that the provisions of Section 18 did apply and that the lower appellate Court acted irregularly in denying jurisdiction. When once an application is admitted beyond time the matter admits of no doubt. The lower appellate Court itself has held that the applicants did not come to know of the sale before 19 August 1923, that the value of the property was not less titan Rs. 5,000, that the sale proclamation was not hung up, nor was the date of the sale proclaimed in the village by beat of dram, that the applicants were residents of a Native State, and that on account of the irregularity in conducting the sale a property worth Rs. 5,000 was sold for Rs, 145. All these findings would lead to the setting aside of the sale.