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Kala Vs. Javaramma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 22 of 1950-51
Judge
Reported inAIR1952Kant47; AIR1952Mys47; ILR1952KAR151; (1953)31MysLJ70
ActsCode of Civil Procedure (CPC), 1908 - Sections 100 and 151 - Order 21, Rules 66 and 90; Limitation Act, 1908 - Sections 18 - Schedule - Articles 12 and 166; Indian Contract Act; Special Relief Act - Sections 27
AppellantKala
RespondentJavaramma and ors.
Appellant AdvocateR.V. Srinivasaiya, Adv.
Respondent AdvocateV. Krishnamurthi, Adv.
Excerpt:
(a) the case discussed about the fraud in publishing and conducting sale and under valuation of property due to ill-will between judgment-debtor and person delegated for execution on behalf of legal representatives of deceased decree-holder - the court held that the sale could be set aside, if application for that was within prescribed time. (b) the case debated whether benefit of section 18 of the limitation act, 1908 could be claimed by the auction purchaser, who was not party of fraud, where fraud was the ground for setting aside the sale under rule 90, order 21 of the civil procedure code, 1908. - constitution of india articles 226 & 227; [s. abdul nazeer, j] writ jurisdiction discretionary power decision making process judicial review held, if the decision is vitiated by mala.....mallappa, j.1. this is an appeal against the order in r. a. 120/48-49 on the file of the additional subordinate judge, hassan, confirming the order of the learned munsif, holenarasipur, in execution case no. 03 of 1944-15. 2. the judgment-debtor in exn. 93/44-45 filed an application i. a. no. i, under order 21, rule 90 and section 151, civil procedure code to set aside a sale on the ground of irregularity and fraud in the publication and conduct or the sale held in that case. he filed also an application under section. 18 of the limitation act alleging that he was fraudulently kept out from the knowledge of the sale and that he came to know of the property having been sold only when the purchaser attempted to take delivery of the property about three days prior to the filing of the.....
Judgment:

Mallappa, J.

1. This is an appeal against the order in R. A. 120/48-49 on the file of the Additional Subordinate Judge, Hassan, confirming the order of the learned Munsif, Holenarasipur, in Execution Case No. 03 of 1944-15.

2. The Judgment-debtor in Exn. 93/44-45 filed an application I. A. No. I, under Order 21, Rule 90 and Section 151, Civil Procedure Code to set aside a sale on the ground of irregularity and fraud in the publication and conduct or the sale held in that case. He filed also an application under Section. 18 of the Limitation Act alleging that he was fraudulently kept out from the knowledge of the sale and that he came to know of the property having been sold only when the purchaser attempted to take delivery of the property about three days prior to the filing of the application. Both the Courts below have found that there was fraud in the publication and conduct of the sale with the result that a valuable property was knocked off for a nominal sum and that on account of the fraud practised on the Judgment-debtor, he was not aware of the sale till the auction-purchaser went to take possession of the property. But the Courts below dismissed the application on the ground that the purchaser was not a party to the fraud and the application is barred by time, Section 18 of the Limitation Act not being of any help to the judgment-debtor as against him. It is not seriously disputed in this Court that fraud was practised against the judgment-debtor in getting the property sold without his knowledge with the result that it was sold for a nominal value. Time had been granted for payment of the decree amount in instalments. The original decree-holder died and on behalf of his L.R., her son-in-law Kalegowda was responsible for the conduct of the execution case. In fact even in this case it is he who has been examined and not the L.R., of the decree-holder. It will be noticed that there was a good deal of ill-will between Kalegowda the son-in-law of the decree-holder and the first applicant-judgment-debtor, Kalappa. There were even criminal cases between them. Kalegowda filed two execution applications for the full decree amount but it was found that they were both premature as the instalments due by then had been paid. As observed by the learned Subordinate Judge, Kalegowda alias Thimmiah had these two execution applications filed with the intention of getting the property sold though money due under the decree up to that time had been paid and that in case the judgment-debtors had not chosen to appear and contest the execution cases at that stage, possibly the execution would have been pushed through and the property sold. Then the execution case now under consideration was filed. Sale notice was not served, except for its being returned with a share of service on the house of the first judgment-debtor. Considering all the circumstances of the case including the way in which the previous execution applications had been filed, it is clear that the notice was returned with such an endorsement of service, to avoid the fact of the execution being brought to the notice of the judgment-debtor, as pointed out by the learned Munsiff. Both the Courts have rightly believed the evidence that the sale proclamation was not published by beat of tom tom. The conduct of the process-server D.w. 1, Nanjappa in not having made a shara on the assurance of the Patel that he would get the tom torn made at the village deserves enquiry. Copies of sale proclamations were not affixed in the lands sold. The properties which had been hypothecated for Rs. 400/- and must have been worth at least double that amount were valued at Rs. 100/-. The only bidder present at the time of the sale was Lingegowda who purchased all the properties for Rs. 100/- only. None of the villagers evidently knew anything about the sale and even the purchaser Lingiah admits that he accidentally came to the place where the sale was being held. There is hardly any doubt that notices were suppressed by deliberate contrivance; there was wilful misstatement in the value of the property sold in the sale proclamation and it is clear that all this was due to the ill-will between Kalegowda and the judgment-debtor, Kallappa. It is a clear case in 'which the sale should be set aside, in case the application of the judgment-debtor under Order 21, Rule 90, is in time.

3. The real point, however, that has troubled the Courts below is that the application has been filed more than 30 clays after the date of sale. It is true that the applicant judgment-debtor has been kept out of knowledge of the sale by fraud but according to the lower Courts this cannot be said to be a case in which the purchaser could be said to be a party to the fraud and as such, the Courts below dismissed the application to set aside the sale. It must however, be stated that fraud cannot usually be proved by direct evidence. It must be remembered that there was a murder case against Lingappa, who has purchased, the property and it is in evidence that Kalegowda who was decree-holder's agent and was responsible for the conduct of the execution case, is not only closely related to Lingegowda, but was also helping him in the criminal case against him. Lingegowda had no lands in the village in which the lands sold are situated. He was not aware of the fact that the properties were brought to sale on account of any sale proclamation. According to him, he had come to Holenarasipur to buy bullocks in the shandy, the usual way in which witnesses of his kind explain their presence in places where they are not likely to be present. It was by sheer accident, according to him, that he came to know of the sale near the Court and purchased the property. All these circumstances are materials more than sufficient for the lower Courts to have come to the conclusion that the purchaser was a party to the fraud. It is, however, not necessary to differ from the concurrent findings of the Courts below on a question of fact; but in our opinion even in cases where the purchaser in a Court sale is a bona fide purchaser for valuable consideration limitation for an application to set aside a sale runs under Section 18 of the Limitation Act from the date on which the applicant came to know of the fraud practised by the decree-holder preventing the judgment-debtor from be-coming aware of the sale and consequently of his right to get it set aside. My learned brother whose judgment I had the advantage of perusing has considered the views expressed in different cases and I have nothing useful to add. It is however desirable to analyse Section 18, Limitation Act and consider what is intended by the Section.

4. The first thing one has to remember is that Section 18 of the Limitation Act does not prescribe any period of limitation by itself. It is an enabling section which postpones the starting point of limitation for suits and applications when by means of fraud a person has been kept out of knowledge of such right or title on which the application is founded. It is no doubt true that Section 18 states that the suit or application to which Section 18 applies must be one against a person guilty of the fraud or accessory thereto or against a person claiming through him otherwise than in good faith and for a valuable consideration. But can it be said that an application to set aside a sale on account of fraud practised by a decree-holder cannot be said to be an application against a person guilty of fraud, merely because a purchaser has to be made a party as he is interested in the setting aside of the sale? There is authority in 'Pulla Reddi v. Pattabhirama Reddi', 56 Mad 734 for a case in which purchaser is guilty of fraud and not decree-holder. Ecasley, C. J., with whom Bardswell, J., agreed observed:

'The question before us now is whether Section 18 of the Limitation Act applies to the case when a person alleges the fraud, not of a decree-holder but of some other person, a party to the sale such as the auction purchaser here ....If the words of the section are to be followed, then any person whose fraud has kept from another person the knowledge of his right to institute a suit or make an application is within the provision of the section... ...If the appellant here is able to show that the auction-purchaser in this case committed such a fraud as in the first part of the section, then his application to have the confirmation of the sale set aside is not barred because time would run only from discovery of such fraud.'

In 56 Mad 734 the decree-holders are parties and they are referred to as respondents 1 and 2. The above extract shows that it is a case in which 'a person alleges the fraud not of a decree-holder.' It is thus clear from 56 Mad 734, that though only some of the persons against whom the application is filed are guilty of fraud which kept the applicant from knowledge of his right to file the application and the others are not guilty of such fraud, limitation runs in respect of that application only from the date of which the applicant discovered the fraud.

5. It has however to be observed that if Section 18 is applicable to cases of applications filed by judgment-debtors under Order 21, Rule 90, as undoubtedly it is, the two provisions of law read together make it clear that the fraud that is complained of as having kept the applicant from knowledge of his right to file the application is the fraud of decree-holder rather than that of the purchaser. It has to be remembered that, as already stated, Section 18 of the Limitation Act postpones the starting point of limitation. It ceases to be applicable the moment limitation begins to run. Is the fraud that keeps the applicant from knowledge of his right to apply, as stated in Section 18, Limitation Act one practised after the sale is held? It cannot be : in such a case limitation begins to run from date of sale and once it begins to run, Section 18, which postpones the starting point of limitation is not applicable. In fact if judgment-debtor is aware of the sale being held, he knows he has to file an application to set it aside, within 30 days from the date of sale. The fraud that keeps him from knowledge of his right to file the application to set aside the sale, must therefore be fraud that has kept the applicant from knowledge of the sale, even prior to the sale. Auction purchaser comes into the picture after the date of sale and hence the fraud contemplated tinder Section 18 of the Limitation Act read with Order 21, Rule 90, is the fraud practised by decree-holder and not the purchaser. Usually the fraud practised by decree-holder in the publication and conduct of sale is also the fraud that keeps the judgment-debtor from knowledge of his right to file an application to set aside the sale though decree-holder is a bona fide purchaser for value and it is to protect persons like Judgment-debtors defrauded by persons like decree-holders that Section 18 of the Limitation Act is intended to help. In fact as observed in 'Bhusan Manl Dasi V. Profulla Kristo Deb', 48 Cal 119 :

'In a case to set aside sale under Order XXI, Rule 00, Civil Procedure Code, the applicant must have knowledge not merely of the factum of the sale but a clear and definite knowledge of the facts which constitute the fraud before time can run against him or her.

When by a fraud involving suppression of processes and submission of false returns, the applicant is kept out of knowledge of the sale of his property, such fraud must be held to have a continuing influence. Indeed in such a case it is for the other side to show that the injured party had clear and definite knowledge of the facts which constitute the fraud at a time from which taken as a starting point the suit is barred by limitation.'

6. To sum up, in order that an applicant under Order 21, Rule 90, C.P.C., might succeed in getting a sale set aside under that provision, it is unnecessary to allege or prove that the auction purchaser is guilty of fraud, if the fraud that has to be proved is to enable the Court to set aside the sale -- whether that fraud was committed in the publication or conduct of the sale or whether that fraud has kept the judgment-debtor who has filed the application from knowing his right to file the application. This is so, as the application to set aside a sale is principally against the decree-holder himself. The auction purchaser purchases property subject to its being set aside on an application under Order 21, Rule 90 filed within 30 days from the date of sale or within 30 days from the date he comes to know of his right to file such an application when by fraud he has been kept from the knowledge or his right to file the application. He is only an unnecessary party in the sense that he can prevent the decree-holder and the judgment-debtor from colluding and getting the sale set aside even in a case where there are no grounds for doing so.

7. In this case the fact that the auction-purchaser who was not a party to the fraud which kept the judgment-debtor from the knowledge of his right to file the application under Order 21, Rule 90, cannot therefore affect the applicant's right to get the sale set aside.

8. As already pointed out the fraud that has to be alleged for setting aside a sale In an application under Order 21, Rule 90, C.P. C., is not the same as fraud that Section 18, Limitation Act, contemplates, though by the same act of the decree-holder or other person the two kinds of frauds might have been committed. Even in respect of fraud that has to be alleged under Order 21, Rule 90, it was at one time considered that before a sale can be set aside, the purchaser must be shown to have been a party to it. This is now not considered to be correct law and in the numerous cases of this Court dealing with the point no such condition is even mentioned as fit for consideration before setting aside sales. As observed in 'Nur Mahomed Peerbhoy v. Dinshaw Hormasji', 71 Ind Gas 625 (PC) :

'Two points are urged in support of the application. The first is that, as there is no allegation of fraud against the auction-purchaser, the sale cannot be set aside. Reference is made to the decision in 'Mohesh Chunder v. Dwarka Nath', 24 W R 260. All that was said in that case was that, however fraudulent the conduct of the plaintiff may have been, if the purchaser is not implicated in the fraud, the validity of the sale would not be affected by the badness of the decree under which the sale took place. There is no question of the decree being vacated in the present instance. We are now concerned with the question of setting aside the sale under Order XXI, Rule 90, Civil Procedure Code. Now, it is plain from the terms of that rule which empowers the Court to set aside, a sale on the ground of material irregularity or fraud in publishing or conducting it, that it is not necessary that fraud should be alleged against the auction purchaser who had no existence at the time of publishing or conducting the sale, and it will seldom be possible. There is also direct authority in the decision in 'Bipin Bihari v. Kanti Chandra', 18 Ind Gas 715 (Cal), that a sale in execution may be annulled on the ground of fraud even if it were not proved that the auction-purchaser had been a party to the fraud.'

9. It would be useful to refer to the rest of the judgment as a case is similar to the one now under consideration. But I think enough has been said to show that in this case the lower Courts were not right in having failed to give relief under the impression that Section 19, Limitation Act is not applicable. The appeal is therefore allowed; the orders of the Courts below are set aside. The application under Order 21, Rule 90, Civil Procedure Code is allowed and the sale set aside. The appellant is entitled to costs throughout.

10. VASUDEVAMURTHY, J.: This Second Appeal has been filed by the 1st Judgment-debtor against the order of the Subordinate Judge at Hassan confirming the order of the Munsiff of Holenarasipur refusing to set aside a sale held in Ex. Case No. 93/44-45 on his file.

11. Respondent 1, claiming as heir of her grandson who obtained the decree, is the present, decree-holder, and Respondent 2 is the auction-purchaser. The decree which was passed on 12-12-1938 for Rs. 580/- costs and current interest provided for payment of the same in six annual Instalments. Respondent 1 filed her first execution application in Ex. Case No. 886/40-41 for the full amount of the decree when the judgment-debtors pleaded that they had paid several sums into Court and that the execution was premature. That execution petition was dismissed on 4-12-1941. The decree-holder then filed on 27-5-43 a next application in Ex. 831./42-43. In this application also he claimed the entire decree amount, but later, on 23-12-43 her Counsel admitted he would give reduction to the extent of Rs. 568/- and accordingly amended the claim. Then that execution petition was also dismissed. The judgment-debtors had by then deposited a further sum of Rs. 100/- and this was drawn by the decree-holder on 13-6-44. For the balance of Rs. 226-10-0 said to be still due she took out the present execution on 29-7-44 and four items of property consisting of a house and three lands were brought to sale on 18-12-44 and purchased by Respondent 2 for Rs. 338/. That sale was confirmed on 25-1-1945.

12. Subsequently on 12-3-1945 the judgment-debtors filed the present application I. A. No. 1 in that execution case under Sections 47 and 151 and Order 21, Rules 66 and 90 read with Section 18 of the limitation Act stating that they came to know of the Court sale on 9-3-45, i.e., just three days earlier when delivery of. possession of the house was sought to be taken. They said that the decree-holder, her son-in-law Kalegowda who was managing her affairs, Respondent 2 the auction-purchaser, and the Patel of the village had made common cause and had colluded together and got their properties sold and knocked down nominally in the name of Respondent 2 who was a relation and close friend of Kalegowda, for a very low price even which they themselves had paid; that though they had made substantial payments of amounts aggregating more than 5 out of 6 instalments and had not committed any default the decree-holder had taken out execution more than once claiming sums far in excess of her dues and had got the properties sold without proper notice to the judgment-debtors; that there was great ill-will on account of various reasons which they alleged in extenso, between them and Kalegowda and the Patel and that if they had been aware of the execution proceedings they would have readily paid up the small balance and would not have allowed their valuable properties to be sold away for a paltry sum. They further pleaded that they had been fraudulently kept out of the knowledge of the execution proceedings and of the sale and relied on various grounds of irregularities and fraud to have the sale set aside.

13. Both the Munsiff and the Subordinate Judge were satisfied that the sale was vitiated by serious irregularities and fraud. Neither the sale notice nor the sale proclamation had been served on the judgment-debtors, There was no due publication of the sale proclamation by beat of tom tom and the same had not been affixed on the properties sold. The Amin had made a false report in this matter. The properties had been very grossly under-valued at Rs. 25/- per item or at Rs. 100/- in all though they had admittedly been mortgaged for a much larger sum and were quite valuable, and they had been purchased for a grossly inadequate value by Respondent 2 who was the only solitary bidder at the Court sale. The decree-holder had more than once claimed wrongly a larger sum than was due. The judgment-debtors had been put off the knowledge of the execution proceedings by fraud and they would have paid up the small balance still due if they had known earlier about them. The sale was therefore, according to them, vitiated by fraud and material regularity as a result of which the judgment-debtors had sustained substantial injury and it was therefore liable to be set aside. These concurrent findings are binding on the Respondents 1 and 2 and cannot be questioned by them, indeed no serious attempt was made to do so either. But both the learned Munsiff and the learned Subordinate Judge, however, hold that they were unable to give any relief to the judgment-debtors as their application to set aside the sale was made beyond 30 days after the sale. According to them, the ground that the judgment-debtors were kept out of the Knowledge of their right to make that application earlier by the fraud of the decree-holder could not avail them as against the stranger auction-purchaser. They have mainly relied on a decision in '46 Mys H C R 692', for arriving at this conclusion.

14. Mr. R. V. Srinivasaiya, learned Counsel for the Appellant, strenuously contends, and rightly, that that decision has no application. In that case it was held that a 'bona fide' purchaser at a Court auction who is a stranger to the decree does not lose his title to the property by the subsequent reversal or modification of the decree and as a rule all that he need look to is the decree and order for sale. He urges that even this principle has been held to apply only in favour of a third party purchasing 'bona fide' at a Court sale but not where the decree-holder himself is the purchaser as the latter is deemed to have had notice of all the facts relating to the suit and execution proceedings. Respondent 2 In this case, he argues, is merely a name lender for the decree-holder and is a close relation and friend of Kalegowda who was acting throughout as her agent. He bid for the properties with full knowledge of the fraud sought to be played on the judgment-debtors and merely to oblige the former. He has referred to the evidence of Respondent 2 where he has admitted that he had no lands in that village, that he went and bid at the sale most casually, that he had not even seen the properties and that ho made no enquiry of any kind about them before bidding. And he relies on the evidence of D.W. 1 Kala and D.w. 4 Thimma to show that Respondent 2 is a relation though somewhat distant of Kalegowda and a very close friend of his. The relationship is denied by Respondent 2 but is apparently true; and there is not much doubt that he is a close friend and was acting in league with Respondent 1's son-in-law Kalegowda. But these circumstances by themselves, It is contended, by Respondent 2 may not be sufficient to enable the Appellant to get over the finding of both the lower Courts that It has not been shown In this case that Respondent 2 was merely a name lender for Respondent 1 or was a party to the fraud played by or on behalf of the decree-holder.

15. The initial onus of proving fraud In order to obtain the protection of Section 18 would He on the person seeking such exemption from the ordinary law of limitation. But the burden of then proving that he is a 'bona fide' purchaser without any knowledge of the fraud played by the decree-holder would then shift to some extent at least on the person who wishes to rely on any special circumstance to escape the effect of such fraud. Compare in this connection 12 Mys L J 432, where it has been held following 'Bajrang Prasad v. Sonejhari Kuer', AIR (12) 1925 Pat 521, and other cases that the burden of proof shifts on the decree-holder once the petitioner establishes that fraud has been practised, to prove that he had knowledge earlier so as to exclude the operation of Section 18. It has been held In numerous cases of suits for specific performance that the burden of proving that he is a 'bona fide' purchaser for value without notice of the earlier contract within the meaning of Section 27 (b) of the Sp. R. Act is on the subsequent purchaser and not on the plaintiff to prove that he has such notice; see Pollock and Mulla's Indian Contract and Special Relief Acts 7th Edition, page 719. The argument urged in such cases that the defendant should not be compelled to prove a negative has not met with acceptance. In the present case the Courts below have assumed that no part of the burden lay on Respondent 2 to show that he was such a 'bona fide' purchaser and that he had paid consideration out of his own monies when both had been denied by the judgment-debtors and they had let in some considerable evidence in support of such a charge. It has been held by this Court in 'L. A. Pourwall & Co. v. Aswathanarayana Setty', 31 Mys C C R 229 following 'Ramgopal v. Sham-skhaton', 20 Cal 93 and 42 Bom 252. Shivabasava v. Sangappa', 29 Bom 1 at p. 12 and in 14 Mys L J 305 that where the findings of the lower Courts are not so much findings of facts on the evidence as findings on inferences which they conceive that evidence supports and if their conceptions as to that evidence in effect amounts to misconceptions which make the inferences quite unsupportable, then in second appeal those findings can be interfered with and set right. It cannot, therefore, be said that the lower Courts are right under these circumstances in assuming even without any evidence in rebuttal that Respondent 2 is such a 'bona fide' purchaser for consideration without any notice of the fraud practised by the decree-holder.

16. Mr. Srinivasiya has also urged that the benefit of Section 18 of the Limitation Act can be availed of by the judgment-debtors as against the auction-purchaser even if he is not shown to he privy to or have had notice of the fraud. For that position, he has relied on a case reported in 'Mahipati Haldar v. Atul Krishna, AIR (36) 1949 Cal 212 in which the facts were similar. There an application was made by the judgment-debtor for setting aside a sale on grounds of fraud and material irregularity in publishing and conducting the sale which had resulted in the property being sold at grossly inadequate price. The application was dismissed by the District Judge on the sole ground that it was presented more than 30 days after the date of sale and although the decree-holder was guilty of fraud the auction purchaser who was a stranger, not being a party or accessory to such fraud, the provisions of Section 18 of the Limitation Act could not be invoked against him. In revision this order was set aside and it was held by Mukherjea, J :

'It is clear from the language of Order 21, Rule 90, Civil Procedure Code, that for setting aside a sale under that rule on the ground of fraud in publishing and conducting the sale it is not necessary to prove that the auction purchaser was a party to the fraud. It is also well settled that the fraud contemplated by Section 18, Limitation Act, is not confined to fraud committed at the inception of the cause of action but may include fraud committed before that date. Where fraud has been committed by the decree-holder in bringing the property of the judgment-debtor to sale, the fraud though committed during execution proceedings would have a continuing influence and would retain its power of mischief so long as that influence is not ended and the party affected has not clear knowledge of the fact constituting the fraud.'

In support of that position, he relied On the observations of the Judicial Committee in 'Rahim-bhoy Habibbhoy v. Charles Agnew Turner', 17 Bom 341; 'Jotindra Mohun v. Brojendra Kumar, AIR (1) 1914 Cal 728, and on 'Kedar Hura v. Ashutosh Roy, 44 Cal L J 565, 'Jagdeo v. Ujiyanl Kunwar' : AIR1928All354 and 'Mahabir Ram v. Rambahadur Dubey', AIR (10) 1923 Pat 535, and differed from the cases reported in 'Jagiswar Das v. Debnarain Roy', 46 . C W N 403 and 'Sailabala Dasi v. Atui Krishna' : AIR1948Cal63 . He was of the view that the intention of the legislature could not be that the Judgment debtor should have absolutely no remedy under Order 21, Rule 90, Civil Procedure Code if the auction-purchaser was a third party who could not normally be a party to the fraud committed by the decree-holder prior to the sale.

17. As against this case Mr. Siddappa, learned Counsel for the decree-holder, has relied on a case reported in 'Ghulam Kadir v. Municipal Council, Negapattinam' (1950) 1 Mad L J 432, where it has been held that though in such cases the decree-holder's fraud may have a continuing influence so as to keep the applicant in ignorance of his right to file a petition for setting aside a sale, when the sale has been confirmed in favour of a 'bona fide' auction-purchaser, the ignorance of the applicant of his right to file an application must also be established as due to the fraud of the auction-purchaser. Panchapagesa Sastri, J., who decided that case, felt that the policy of the Legislature appeared to be that judicial sales should be challenged very early and that except in cases where there was no jurisdiction to sell and the sale was therefore a nullity, 'bona fide' auction-purchasers must not be deprived of the benefit of the provisions of the Limitation Act under Article 166 and Article 12 and that it was inconsistent with the policy of the Act to apply Section 18 against them where they were not shown to be parties to the continuing influence of the fraud of the decree-holder. In support of that view he relied on a case reported in 'Payidamma v. Lakshmi Narasamma', 38 Mad 1075 and to observations of Sadasiva Ayyar, J., in that case. Those observations no doubt fully support Panchapagesa Sastri, J. With great respect, the point does not appear to have arisen directly for consideration in that decision and was really in the nature of an 'obiter' as the plaintiff had filed a suit in that case which was held by both the learned Judges who heard that case as perfectly competent and within time. Even Sadasiva Ayyar, J., does not appear to have been happy at the result which would be reached by accepting-the contention that the judgment-debtor could only sue a decree-holder for damages for fraud after the expiry of 30 days and could not get back the property which had been sold in Court auction through fraud both of the decree-holder and the purchaser. He felt bound, however, to come to the conclusion that the judgment-debtor even in such a case cannot apply under Order 21, Rule 90 after the expiry of 30 days for setting aside the sale and thought that there may be other appropriate reliefs which in justice were due to the Judgment-debtors to get rid of the effects of the fraud practised by the Court auction-purchaser by instituting a suit praying for such other reliefs. He did not wish to hold that the Courts were powerless to imagine, invent and grant other appropriate reliefs in such cases' and suggested that the Court without setting aside the sale may possibly even grant an injunction to the Court auction-purchaser to reconvey the property to the judgment-debtor which would have the effect similar to a decree for specific performance of a contract of sale. He observed :

'The hands of Courts of Justice are not tied inthese matters simply because, to support thegrant of a particular appropriate relief, no exactprecedent could be quoted.'

Panchapagesa Sastri, J., referred to AIR (36) 1949 Cal 212 and the earlier cases on which it was based but chose to follow the earlier Madras decision. If It is the rule of 'Stare decisis' which prompted the learned Judge who decided the later Madras case, we in this Court are free to follow either of the views; and it appears to me that we would be doing substantial justice and committing no breach of any express rule of the law if we adopt the Calcutta, Allahabad, and Patna view as expressed in : AIR1928All354 and AIR (10) 1923 Pat 435. It may be that in cases where such an application is made long after the sale and the auction-purchaser is found to be thoroughly innocent of the fraud and has further improved the property or spent monies on it, or it has passed on to other 'bona fide' purchasers for value without notice the Court may consider whether the judgment-debtor who is guilty of laches may sit by and acquiesce in such improvements and can succeed against the auction-purchaser. But in a case like the present where no such considerations arise at all there can be no reason why if the fraud in publishing or conducting the sale is proved as against the auction-purchaser, the result of that finding should not be held to affect the auction-purchaser also.

18. In the result, this appeal is allowed and the ciders of the Courts below are set aside with costs throughout, and consequently the sale is set aside.

19. Before leaving this case reference must bemade to the observations of the learned Munsiffin paras 10, 11 and 12 of his judgment about theconduct of P.W. 1, a Process Server of his Court.He appears to have made a false report or givenfalse evidence. If confidence in proceedings ofCourt is to be maintained, it is very necessary thatinstances of this nature, should be promptly investigated and, if proved, should be severely dealtwith. The Munsiff will hold an enquiry into theconduct of the Process Server and forward the result of the same to this Court through the District Judge very early.

20. Appeal allowed.


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