CHAKKU PANDA Vs. NEMAI PRASAD PANDA

JUDGEMENT

(1.) One Gadadhar died leaving debts and leaving an estate which passed to Balaram Panda, a major, and Nimai Prasad Panda, a minor. The appellant before us after the death of Gadadhar sued these persons in respect of a debt due to him and obtained a decree in April 1933 limited as usual to execution against assets of the deceased in the hands of the judgment-debtors. Execution was taken out in June 1933 and certain property was sold to the decree-holder on 15 January 1934, the sale being confirmed on 23 February 1934. The decree-holder took delivery of possession on 7 May 1934, and the first judgment-debtor, Balaram Panda, presented objections under Section 47 and Order 21, Rule 100, Civil P.C., which were dismissed on 28 September 1934. The second judgment-debtor on 26 September 1935, through his guardian ad litem, presented the application to set aside the sale out of which this appeal arises.

(2.) It was entitled an application under Order 21, Rule 90, Secs.47 and 151, Civil P.C. It was alleged that the minor was not properly represented in the execution case, that the decree-holder had proceeded against the personal property of the minor in contravention of the direction given in the decree, that a portion of the property purchased belonged to Raghunath Jiu Thakur and that there had been fraudulent suppression of service of sale processes leading to loss to the judgment-debtor. The Munsif found that the processes had been correctly served and that the minor had been properly represented in the execution case. These findings were upheld by the District Judge on appeal. The Munsif was of opinion that the application was barred by the limitation of 30 days under Art. 166 of the Schedule to the Limitation Act and he did not express an opinion on the merits of the contentions that the decree- holder had proceeded in execution against the personal property of the objector and that part of the property purchased belonged to Raghunath Jiu Thakur.

(3.) Accordingly he dismissed the application. On appeal the District Judge thought that the 30 days rule of limitation was not applicable to the present case, because if it were found that the personal property of the judgment-debtor had been sold the result might follow that the sale was without jurisdiction, and in that case he thought the proper Art. of limitation to apply was Art. 181. On this view he set aside the order of the Munsif and sent back the case on remand for disposal after inquiring into the allegations that the personal property of the objector had been sold.