PURNA CHANDRA MANDAL Vs. ANUKUL BISWAS

JUDGEMENT

(1.) THIS second appeal arises out of an application made by a judgment-debtor to set aside a sale in execution. The sale took place as long ago as 17 January 1896. THIS judgment- debtor, Anukul Biswas, applied to the Court to have the sale set aside on the 15 April 1907, on the ground of fraud. The first Court came to the conclusion that the petitioner had utterly failed to prove that there was any fraud or collusion on the part of the decree-holders or the auction-purchaser in bringing the property to sale, and it accordingly dismissed the application. On appeal, the Subordinate Judge found that there was fraud on the part of the decree-holders, and that they had got the property sold to Purna Chandra Mandal, the present appellant, in collusion with certain judgment-debtors, and he accordingly set aside the sale.

(2.) SO far as the findings of fact go with regard to the question of fraud, it is not necessary for us in this appeal to consider them. The sole question raised before us is whether the application is not barred by the statute of limitation. Taking the application by the judgment- debtor, Anukul Biswas, to be one under Art. 178 of the Second Schedule of the Limitation Act, the petitioner would have, in ordinary circumstances, three years from the date when his right to apply accrued, within which to make his application. He did not actually make it until more than eleven years from the date of the sale, which was, of course, the date on which his right to apply accrued In the first Court, it was unnecessary, in the view that the Munsif took of the evidence, to go into this question of limitation; but, when the matter came before the learned Subordinate Judge and he was inclined to take a different view of the facts regarding the sale, it was obviously necessary for him to see whether the application of this judgment- debtor was, in fact, within time. The question of limitation depends upon what has taken place after the date of the sale, with regard to the knowledge of the judgment-debtor concerned. Section 18 of the Limitation Act provides that when any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right, the time limited for instituting a suit or making an application (a) against the person guilty of the fraud or accessory thereto, shall be computed from the time when the fraud first became known to the person injuriously affected thereby. The three years would, in ordinary circumstances, have expired in January 1899. It was, therefore, incumbent on the petitioner to satisfy the Court that he had been by means of fraud kept from the knowledge of the sale having taken place to his prejudice, and further he had to show with regard to the auction- purchaser, the appellant in this case, that he, the appellant, was either himself guilty of the fraud or an accessory thereto. In order to ascertain whether the judgment-debtor had proved - this, we kept the case back so that we might look through the evidence. Having been carefully through the evidence, we find that there is not a suggestion of any evidence having been directed at all to this point nor is there any finding upon it by either of the lower Courts. There is some evidence of fraud in bringing about the sale with which the lower Court was not satisfied, but on which the learned Subordinate Judge eventually set aside the sale, but as to the fact of the sale having been kept from the knowledge of the petitioner by fraud, there is, as we have said, no evidence at all. Under these circumstances, it is obvious that the application of the petitioner must be regarded as barred by limitation. When a suit or an application is, in the face of it, barred, it is for the plaintiff or the applicant to satisfy the Court of circumstances which would prevent the statute from having its ordinary effect, and it is incumbent in this case upon the petitioner, the judgment-debtor, to show that not only had he no knowledge of the sale Until some date within three years of his application, but that he was kept from that knowledge in the manner and by the act of the person specified in Section 18 of the Limitation Apt. We may say that it seems to us almost incredible that this judgment- debtor, Anukul Biswas, knew nothing about the sale of his own land, including his homestead, which had taken place eleven years before he made his application. Not only were there suits for rent against some of the tenants, but there was another unsuccessful application by his co- judgment-debtors to set aside this very sale. Under these circumstances, we think that the order of the learned Subordinate Judge cannot be sustained, the application being barred by limitation. The appeal is, therefore, allowed, the order of the lower appellate Court is set aside and the application of this judgment-debtor is dismissed. The appellant must have his costs in this Court as well as in the lower Courts.