TUKARAM Vs. SAKHARAMSA

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The appellant had a decree against him and in execution of that decree his property was attached and sold. He made an application Under Order 21, Rule 90, Civil I.P.C., that the sale should be set aside, but that application was dismissed. Instead of appealing against the order dismissing the application the appellant filed a suit against the auction-purchaser and the decree-holder for cancellation of the sale and for a declaration of his title. The suit was ostensibly Under Section 47, Civil P.C. The trial Court held that no suit would lie and that finding has been upheld by the Additional District Judge on appeal. The appellant now prefers this second appeal. The only question to be decided is whether this decision of the Courts below that no suit lay Under Order 47, Civil P.C. is correct.

(2.) THE trial Court has followed the ruling in Jaggan Nath v. Daud A.I.R. 1923 Lah. 592 and that ruling is on all fours with the present case except that in the Lahore case no suit was filed and the judgment-debtor only attempted to prefer a second appeal which was held to be inadmissible Under Section 104, Sub-section (2), Civil P.C. In appeal it is now contended that the suit was not barred Under Order 21, Rule 92, Sub-Rule (3), that no application Under Order 21, Rule 90, was necessary and that the suit was maintainable Under Section 47 of the Code. Reliance was placed upon the rulings in Bhagwan Das v. Suraj Prasad A.I.R. 1925 P.C. 146 and Rajagopala Ayyar v. Ramanujachariar A.I.R. 1924 Mad. 431, whilst reference was also made to the case reported in Godhaji Rao v. Dnyanoba [1917] 1 N.L.J. 184. I am of opinion, however, that none of these cases will really support the appellant;. The learned Counsel for the appellant has referred to p. 225 (of 47 All.) of the Allahabad ruling where there is a discussion with regard to the Rules 89, 90 and 91, Order 21, and the provisions of Order 21, Rule 92, Sub-rule (3). I find, however, that it was held in the Allahabad case that the fraud alleged was not merely a fraud in publishing or conducting the sale but a definite conspiracy also was alleged. I would quote the following passage: Rule 90 applies to the case where there has bean material irregularity or fraud in publishing or conducting a sale. It is true that the plaintiff alleged in the plaint that owing to fraud ha was kept in ignorance of the proceedings ending in the sale, but that is only a minor part of his case. He does not seek to have the sale set aside on the ground of material irregularity or fraud in publishing or conducting the sale. The plaintiff's casa has already been stated. It may be reiterated in brief. His case is that there was a conspiracy by which the plaintiff was to be deprived of the property which he had properly purchased on payment.

(3.) IN the present case the only fraud alleged is that no notice was served upon the judgment-debtor Under Order 21, Rule 66, and that the judgment-debtor was kept in ignorance of the sale. Apart from this fact, though the Court executing the decree has held that the judgment-debtor was served with a. notice Under Order 21, Rule 66, I would hold on the authority of the ruling in Jaggan Nath v. Daud A.I.R. 1923 Lah. 592 that the failure to issue notice Under Order 21. Rule 66 is an irregularity in publishing the sale within the meaning of Order 21, Rule 90. In any case it is clear, I think, that there was no fraud on the part of either the decree-holder or the purchaser as notice was ordered to issue by the Court and a notice was affixed to the house of the judgment-debtor. The executing Court held that service to be good and the responsibility of holding the service good was that of the Court and no blame could attach either to the decree-holder or to the purchaser. I am clear, then, that no fraud could be alleged against the decree-holder or the purchaser, and even the plaintiff has not alleged, as far as I can see, any fraud apart from the publication of the sale. The rulings quoted by the lower appellate Court in para 3 of the judgment, namely, Prosunno Kumar Sanyal v. Kali Das Sanyal [1892] 19 Cal. 683, Harihar Kanta v. Rama Pandu [1909] 33 Bom. 698, Sadho Chaudri v. Abhenandan Prasad [1904] 26 All. 101 and Gaya Prasad v. Baridhir Singh [1906] 28 All. 681 do not appear to me to apply to the present case, and I would also point out that all those cases were decided under the Civil Procedure Code of 1882; and at p. 245 of the ruling in Jaggan Nath v. Daud A.I.R. 1923 Lah. 592 it has been held that the ruling under the old Code that an application made on the ground of fraud could coma only Under Section 244 (corresponding to Section 47 of the present Code) must be regarded as obsolete. I fail to sea the raisin, therefore, for the Additional District Judge quoting those rulings. I have, however, been referred to another case by the learned Counsel for the respondents, namely, Brahmayya v. Appayya Sastri A.I.R. 1921 Mad. 121, which is a clear authority for holding that no suit would lie on an allegation of fraud and irregularity in the publication or conduct of an auction sale. The present case is even stronger than the Madras case, because it is admitted that in this case an application was, as a matter of fact, made Under Order 21, Rule 90, and was dismissed The plaintiff's remedy, therefore, was to appeal against that order, but instead of availing himself of that remedy he chose to let the period of appeal expire and then filed a suit ostensibly Under Section 47, Civil P.C.