Skip to content


Sheo Ram Koeri and ors. Vs. Ikram-un-nissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All316
AppellantSheo Ram Koeri and ors.
Respondentikram-un-nissa Bibi and ors.
Excerpt:
.....in sale kept from knowledge of the judgment-debtor by fraud of the decree-holder--sale confirmed-^application by judgment-debtor to set aside sale--limitation. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section..........which are not relevant to this matter, section 18 is as follows:where any person having a right to make an application has, by means of fraud, been kept from the knowledge of such right, the time limited for making an application against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person injuriously affected thereby.2. the question as to whether in fact the judgment-debtor had been kept from the knowledge of his right to make an application by means of fraud was one of the matters into which the subordinate judge inquired, and he was satisfied that the circumstances which would have entitled the guardian of the judgment-debtor to make an application, did not come to the knowledge of the guardian until the 3rd of june, 1913, and.....
Judgment:

Grimwood Mears, C.J. and Pramada Charan Banerji, J.

1. This is an application in revision which raises a question whether Section 18 of the Limitation Act applies when a sale in execution proceedings has already been confirmed. On the 20th of August, 1912, Sheo Ram obtained a final decree in a suit upon a mortgage for Rs. 685. On the 21st of January, 1913, he took steps in execution. The property in question was advertised for sale and on the 21st of April, 1913, was sold. The decree-holder had obtained permission to bid and, in fact, he bought the property on that day. On the 23rd of May, 1913, the sale was confirmed. On the 23rd of June, 1913, the guardian of the judgment-debtor, who throughout all the proceedings was a lunatic, asked that the sale might be set aside and he alleged a series of acts and calculated omissions by the decree-holder, and other conduct of the decree-holder and third parties, which pointed to fraud on the part of the decree-holder. It is said that before the execution court had time to consider that application on its merits, a suit was filed to set aside the decree on the ground of fraud. That suit was in fact filed some eighteen months after the filing of the application, namely, in December, 1914. In June, 1915, that suit was dismissed by the first court, in May of 1916 by the lower appellate court, and in July of 1918, by this High Court. Thereupon the application filed on the 23rd of June, 1913, was taken up by the Munsif on the 11th of January, 1919, and he passed an order setting aside the sale. From that order there was an appeal. The matter was remanded on two occasions for certain findings, but ultimately on the 3rd of April, 1922, Mr. Ali Ausat confirmed the order of the Munsif and set aside the sale of the 21st of April; 1913. The learned Subordinate Judge set out various charges of fraud which he held had been established against the decree-holder. We are sitting here in revision, and even if we disagreed with him, we should nevertheless be bound to accept his findings. The point taken by the decree-holder is this, that the sale having been confirmed on the 23rd of May, 1913, from that day the execution court had no power to make-any order varying that confirmation, or setting it aside, or in any way dealing with it, it being plainly stated by Dr. Katju that the right view to take of that order of the 23rd of May, 1913, is that when it was passed, the execution court became wholly functus officio. On the other side, it is said that whilst in a case in which no fraud was alleged, the 21st of May, 1913, would have been the last date upon which the judgment-debtor could have raised objection, nevertheless in a case of fraud an application can be made even after the thirty days,, provided the judgment-debtor can show circumstances which bring him within the words of Section 18 of the Limitation Act of 1908. Omitting the words which are not relevant to this matter, Section 18 is as follows:

Where any person having a right to make an application has, by means of fraud, been kept from the knowledge of such right, the time limited for making an application against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person injuriously affected thereby.

2. The question as to whether in fact the judgment-debtor had been kept from the knowledge of his right to make an application by means of fraud was one of the matters into which the Subordinate Judge inquired, and he was satisfied that the circumstances which would have entitled the guardian of the judgment-debtor to make an application, did not come to the knowledge of the guardian until the 3rd of June, 1913, and that, therefore, an application by him could have been made at any time between the 3rd of June and for thirty days thereafter. He did, in fact, make an application on the 23rd of June. The question which we have to decide is whether that application made as it was on the 23rd of June was not, in every way, as legally efficacious as if it had been made within thirty days of the date of the sale. We are of opinion that this is an enabling section which does extend the time, and that when the person aggrieved shows facts which establish a fraud, and shows that by means of that fraud he has been kept' from the knowledge of his right to make an application, he can, on the establishment of those matters, if he makes his application within thirty days, be in all respects in the same position as if he were making it within the thirty days of the sale, and the fact that the sale has been confirmed by the court in ignorance of the fraud is no bar to his application and does not stand as a bar to any further order which the court may make. This matter was considered in the case of Mohendro Narain Chaturaj v. Gopal Mondul (1890) I.L.R. 17 Calc. 769 in the year 1890. There the very same point was taken that the sale having been confirmed Section 18 was inapplicable. Mr. Justice PIGOT, at page 776, dissented from the expression of opinion in the case of Gobind Ghander Majumdar v. Uma Charan Sen (1887) I.L.R. 14 Calc. 679 and said as follows: 'I think that under Section 18 of the Limitation Act, where irregularities-affecting the validity of the sale have, by the fraud of the judgment-creditor or other parties to the sale, been kept concealed from the judgment-debtor, he is entitled, whether the sale has been confirmed or not, to make as against the person guilty of the fraud or accessory thereto, such application, if any, under Section 311 as he may be entitled to make, his time for making it being computed from the time when the fraud first became known to him. The confirmation of the sale ought not to be used as a shield for the fraud by which the court has been induced to make the sale itself. As we are in complete agreement with that expression of opinion by the learned Judge, it follows that this application in revision must fail. We accordingly reject it with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //