1. The suit out of which this appeal has arisen was dismissed by the learned Subordinate Judge on a preliminary ground without trying whether the allegations of fact made in the plaint were correct or not. In this Court his judgment has been sought to be supported not only on the ground on which it is based, but also on the ground that the plaint discloses no cause of action.
2. The history leading to the institution of the suit is as follows : The plaintiff Bhagwan Das who has since died and the father of Kanhaiya Lal, the defendant No. 11, Duli Chand were brothers. Babu Basdeo Narain Singh and Ram Udit Narain Singh, defendants third party to the suit owned the entire mahal No. 10 in the village of Dudhai, a portion of which, viz., a 10 anna share is in suit. It appears that the entire mahal was mortgaged with Bhajan Rai under two transactions, one being usufructuary and the other a simple mortgage. Duli Chand took a third mortgage which was usufructuary with respect to a 14 anna share in the mahal and paid off the usufructuary mortgage. Bhajan Rai, the father of the defendants second party, brought his suit for sale on foot of his simple mortgage and made Dali Chand a party to the suit. The suit was decreed and a little over a sum of Rs. 10,000 was declared to be payable under the decree. This decree was passed on the 13th of July, 1918. On the 20th of September, 1918, Duli Chand and his brother Bhagwan Das, the original plaintiff of the suit, purchased a 13'annas 6 pie share out of the entire mahal for a consideration of Rs. 36,000 and odd. The largest portion of the consideration money went to satisfy the debts already due to the two brothers under the previous mortgage and other transactions and the balance, a sum of Rs. 10,000, was left with the vendees for payment to Bhajan Rai. This money, however, was not at once paid. About a year after this purchase three sets of plaintiffs brought suits for preemption against Bhagvan Das and Duli Chand. One suit was instituted by the defendant No. 7 Musai Singh alias Udai Bhan Singh. Another suit was instituted by Ram Partab Singh, the defendant No. 8, in the suit These two preemptors have been described as defendant's fourth party. The third suit was brought by the defendants described as fifth party. The suits brought by the defendant's fourth party were decreed and the suit brought by the defendant's fifth party was dismissed. The Court ordered that the two successful plaintiffs should each pay one-half of the purchase-money already paid by the vendees, viz., one-half of Rs. 26,000 and odd and that the balance payable to Bhajan Rai should be paid by them in equal moieties. It was further ordered that if one of the plaintiffs failed to pay the amount payable by him and thus to pre-empt one-half share in the property, the other plaintiff might pay this amount and obtain possession over the other half. It appears that as a matter of fact the decretal amount due to Bhajan Rai was not paid and Bhajan Rai brought about a sale of a 10 anna share. The property being ancestral, the decree was transferred to the Collector for execution and he held a sale on the 21st of June, 1920, and the entire 10 anna share was purchased by the defendant first party Suraj Prasad Singh for the sum of Rs. 10,000. At the sale a subsequent mortgage was notified because the Deputy 'Collector, who was acting for the Collector, discovered the existence of an incumbrance over the property. The learned Assistant Collector admits in his proceedings that the Civil Court had not ordered the notification of any such mortgage. The defendant first party does not admit that he is liable to pay any prior mortgage. The fact of the sale having come to his knowledge, Duli Chand deposited in Court the entire decretal amount with 5 per cant, on the sale price and prayed for the sale to be set aside. This application was opposed not only by the auction-purchaser, but also by the mortgagors judgment-debtors and the decree-holders. The Assistant Collector held that on account of the pre-emption decrees passed against him, Duli Chand had ceased to have any interest in the property and he could not make a valid deposit. He accordingly recommended to the Collector that the sale should be confirmed. The sale was accordingly confirmed on the 12th of October, 1920. An appeal was taken to the Commissioner but he upheld the order of the Collector. A petition to the Board of Revenue for revision was also unsuccessful. Bhagwan Das and Duli Chand had filed appeals against the preemption decrees and they were pending before this Court. An application was made by the respondents that they might be allowed to withdraw their suits and they offered to pay the costs of the appellants. This application was allowed. The date of this application as given in our printed record seems to be incorrect In the plaint the factum of this Court having permitted the preemptors to withdraw their suits is mentioned and this shows that the order must have been passed before the institution of the suit. out of which this appeal has arisen. It also appears that Duli Chand made an application to the Subordinate Judge asking him to set aside the sale held by the Collector and confirmed by him. This application was rejected by the Subordinate Judge and the judgment was upheld by this Court on the sole ground that Civil Court had no jurisdiction to interfere with the proceedings of the Collector, These two last-mentioned facts are not to be found on the record of the present case. But we were referred to the file of the Ex. F.A. No. 208 of 1923 of this Court which was decided on the 15th of April, 1924 by two learned Judges of this Court.
3. Now, the suit, out of which this appeal has arisen was brought on the following allegations. Bhagwan Das said that he was no party to the decree. He and his brother Duli Chand were the victims of a fraud committed jointly by the judgment-debtors, the decree-holders, the auction-purchaser and the preemptors. Evidently by 'pre-emptors' the plaintiff means the successful pre-emptors. The plaintiff says that these persons combined to deprive the purchasers, namely Bhagwan Das and Duli Chand, of their property and with this view they in the first instance kept them in the dark as to the fact that execution proceedings were being taken and how they were going on. After the sale was held Duli Chand came to know of the sale and he made a deposit. The application-was opposed. The pre-emptors, as they were anxious that the property should go to them through the auction-purchaser, never made any attempt to pay the decretal amount. When they found out that the auction-purchaser had successfully resisted Duli Chand in his attempt for the sale being set aside, they withdrew their suit by an application in the High Court. This act of theirs was a part of the same conspiracy. On these allegations, Bhagwan Das asked that the auction sale of the 21st of June, 1920, might be declared to be void and he should be maintained in possession. In the alternative he asked for possession.
4. It has been urged that the plaintiffs' case has really been elaborated in the High Court and that it was originally much more confined. It is pointed out that the plaintiff furnished further particulars by his application dated the first of March, 1922, and that the Court should not take cognizance of any allegation other than what is to be found in the said application. But that application was intentionally confined to matters relating to the sale. This application was filed in reply to defendants' application dated the 22nd of February, 1922. Both the applications are printed as Nos. 8 and 9 at pages 14 and 15 of the printed record. The defendants' application will show that he wanted particulars 'in connection with sale proceedings' and he was supplied with these, It will be seen that the plaintiff and Duli Chand purchased property worth Rs. 36,000 (speaking roughly) and paid a substantial portion (Rs. 26,000 and odd) of the consideration money. They had undertaken to pay off the balance and they did make a genuine attempt to pay off the decree. Whether they were kept in ignorance of the execution proceedings or not is a matter which will have to be tried. They further say that the conspiracy between the pre-emptor and the decree-holder and the auction-purchaser was that the property should be wrested from B hag wan Das and Duli Chand either by means of a pre-emption decree or if possible by an auction-purchase, of which Bhagwan Das and Duli Chand should be kept in ignorance. Although the pre-emptor Musai Singh paid into Court the sum of Rs. 26,000 it is alleged that, they never paid the money which the Court had directed them to pay to Bhajan Rai. It is pointed out that this was done at the risk of losing the pre-empted property simply because the idea was that if they could obtain the property by a purchase at auction in execution of a decree passed on a first mortgage they would get the property very cheap and in that case they would forego their claim for pre-emption. It is urged that, the result of the pre-emption decree was that on foot of it the decree-holder was enabled to resist Duli Chand's application before the Assistant Collector for the setting aside of the sale. It was contended before the Assistant Collector that owing to the pre-emption decrees Duli Chand had left in him no interest to pay the decretal amount and penalty and thus to save the property. It is pointed out that when Duli Chand's application failed, no necessity was left for the pre-emptor Musai Singh to resist the appeal of Bhagwan Das and Duli Chand and they withdrew their suit. the result of all that has happened is absolutely clear. Whoever may be to blame for it, Bhagwan Das and Duli Chand have lost not only 10 annas share out of 13 annas 6 pies purchased by them but they have also lost a sum of Rs. 26,000 which they had already paid for the purchase of the property. It is not the case that these men were unwilling or unable to pay the balance of the purchase money and to redeem the promise to pay the whole of the purchase money.
5. The question is whether this unfortunate-result was the outcome of a conspiracy as alleged by the plaintiff or whether it was due to an unfortunate combination of circumstances over which the defendants had no control. It will thus be seen that if the plaintiff's allegations be true he ought to be entitled to relief. Where there is a wrong there is a remedy is a maxim of old standing, specially as fraud vitiates all proceedings, not only transactions between private parties, but even all proceedings held in a Court of law.
6. Now, let us see whether there is anything in law to bar the trial of the plaintiffs' suit.
7. The learned Subordinate Judge threw out the suit by a short judgment holding that it was barred by provisions of Order 21, Rule 92, Clause 3 of the schedule of the, Civil Procedure Code. It has been further contended on behalf of the respondents that in any case a suit will not lie. The remedy lay by an application under Section 47 of the Civil Procedure Code and that remedy has already been exhausted.
8. To take the second point first-it appears that although Bhagwan Das was not a party by name to the decree obtained by Bhajan Rai who is now represented by his sons, the defendants second party, Bhagwan Das must be deemed to be a representative of the judgment-debtor as he purchased subsequently to the passing of the decree the interest of the mortgagor. Ordinarily therefore his relief could be granted only under Section 47 of the Civil Procedure Code and not by a suit.
9. When Duli Chand made an application to the Subordinate Judge for the setting; aside of the sale held by the Collector his application was thrown out on the ground-that the Civil Court had no jurisdiction to interfere with a sale held by the Collector for executing a decree against ancestral property. The order of the Subordinate Judge was affirmed by this Court. This order, speaking respectfully, was a perfectly right order. It is difficult to sea how the Civil Court executing the decree can interfere with an order passed by the Collector whom the decree had to be sent for execution on account of the property bang ancestral. The Collector exercises his powers under the authority of the Local Government and he is in no way subordinate to the Civil Courts. An applications therefore before the Subordinate Judge under Section 47 of the Civil Procedure Code will be and was held to be misconceived. It is not pretended that an application under Section 47 of the Civil Procedure Code lay before the Collector. The Collector is not a Court executing the decree. He is nowhere mentioned as a Court and the, Legislature therefore found it necessary to say specifically that when a Collector exercises his jurisdiction in the matter of the execution of decrees he should be deemed to be acting judicially (see Section 71 of the Civil Procedure Code). If the Collector had been a Court it would not have been necessary to say that ha should be deemed to be acting judicially. On this point some cases were cited by Dr. Katju, the learned Counsel appearing for the respondents. These are Muhammad Said Khan v. Prayag Sahu (1894) 16 All. 228 and Kushal Chand v. Nand Bam (1911) 35 Bom. 516. In the former case, a question arose whether a certain adjustment of the decree certified before the Collector who was executing a decree against ancestral property was or was not a valid adjustment and whether the acknowledgment of the decree made by the judgment-debtor before the Collector could or could not be relied upon by the decree-holder for the purposes of saving his decree from limitation. All that was held by Burkitt, J., was that it was the duty of the Collector to execute the decree and he was therefore properly seized of the application for adjustment. It followed therefore that an acknowledgment of the decree made before the Collector was held to be a right acknowledgment. I do not find anything in this decision supporting the contention of the learned Counsel for the respondents that a Collector is a Court and he can entertain an application under Section 47 of the Civil Procedure Code after he has confirmed a sale. In the case in Kushal Chand v. Nand Ram (1911) 35 Bom. 516 all that was held was (so far as is relevant for our purposes) that while a Collector is executing a decree he is entitled to act upon a statement of the decree-holder that his decree has been satisfied. It was pointed out that while the Collector was executing the decree he was in charge of the execution and an intimation to the Collector of the fact of payment satisfied the conditions of Section 258. The third case relied upon by Dr. Katju is that of Shriniwas v. Jagadevappa (1918) 42 Bom. 621. In that case it was held that where an execution of a decree was proceeding before the Collector, he was the only authority to whom an application should be made for permission to bid at the auction sale by the decree-holder. The Local Government of Bombay have made rules by which the power of the Civil Court to grant permission to the decree-holder to bid have bean granted to the Collector while executing a decree. This case therefore is no authority for the proposition that the Collector executing a decree against ancestral property was a Court and could entertain an application under Section 47 of the Civil Procedure Code. The rulings quoted, therefore, are of no avail to the respondents.
10. It follows that the Collector could not take cognizance of the present complaint of Bhagwan Das as an application under Section 47 of the Civil Procedure Code. If there is a wrong there is a remedy and if there be a remedy and that remedy must be by a suit unless the institution of such a suit is barred by law.
11. I come therefore now to examine the provisions of Order 21, Rule 92, Sub-section 3. This rule lays down that no suit to sat aside an order made under that rule shall be brought by any parson against whom such an order is made. The order referred to is an order confirming or setting aside a sale. I will assume that for the purposes of the application of this rule Bhagwan Das was a party against whom an order confirming a sale has been made, he being the legal representative of a judgment-debtor. But what is the scope of the ruling? Rule 92 says in Sub-rule 2 that where such application is made and allowed, that is to say, where an application to set aside a sale on the several grounds mentioned before is made and allowed and where a deposit under Rule 89 is made within the limited time the Court shall pass an order setting aside the sale.
12. In Sub-rule 1, Rule 91 says where any such application as is mentioned in Rules 89, 90 or 91 has been made and has been disallowed or no such application has been made, the Court shall pass an order confirming the sale. To understand therefore the scope of Rule 92, we have to examine the Rules 89, 90 and 91. Rule 91 is not relevant for our purposes because it relates to an application by the purchaser to set aside the sale on the ground that the judgment-debtor had no saleable interest. Rule 89 relates to an application by a judgment-debtor or any person interested in the property to set aside the sale after deposit of the decretal amount and the penalty. The present suit does not seek to set aside the sale on any such ground. It seeks to have the sale set aside on much larger grounds. Rule 90 applies to the case where there has been material irregularity or fraud in publishing or conducting a sale. It is true that the plaintiff alleged in the plaint that owing to fraud he 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 case 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. The conspiracy was not merely that he should be kept in ignorance of the execution proceedings leading up to the sale, but he was not to be allowed to even get the sale set aside on payment. The pre-emption suits were meant to deprive him of the property, fairly if necessary, or the pre-emption decree might be utilised in showing that Duli Chand or the plaintiff had no interest left in the property so as to entitle them to make a deposit under Rule 89, Order 21 of the Civil Procedure Code. I may point out here the significant fact that when the application for setting aside such sale was before the learned Assistant Collector Mr. Sri Bilas the application was opposed not only by the decree-holder, but also by the judgment-debtor, What interest judgment-debtor had left in him in the property I fail to see. But he fought to have the application of Duli Chand dismissed. At page 77 of the record the learned Assistant Collector says that Basdeo, whom he calls the 'real judgment-debtor' said that Duli Chand had no status and could not deposit the money and that he, Basdeo, would suffer pecuniary loss if the sale was set aside. By setting aside the sale of property worth at least Rs. 26,000 for Rs. 10,000 the judgment-debtor had nothing to lose but only to gain. As a matter of fact in this case Basdeo had left in him no interest in the property and it was immaterial whether Duli Chand's application succeeded1 or failed, yet he opposed the application. As I have already stated the learned Assistant Collector thought that Duli Chand1 had no interest left in the property and he could not make the deposit. The conduct of the judgment-debtor would go to partially substantiate the story of conspiracy. The fact that the pre-emptors made no attempt to save the property which they had obtained by decrees of the Court points to the fact that their interest and the interest of the auction-purchaser were one and the same. Thus, it will be seen that the case of the plaintiff is based on much larger grounds, than merely of fraud in the publishing and conducting of a sale. My remarks on the merits of the case are not to be taken as in any way; deciding the case. I had to refer to facts only to show that the plaintiff had a substantial story of grievance and that story would entitle him to a trial of his case and there is no rule of law which prevents a Court of justice from entering into the merits of the plaintiff's case.
13. It was argued that the plaint did not disclose the date when the fraud came to be known to the plaintiff and that, when the petition printed at page 67 of the record was made or when the case was heard by the Court and the order printed at page 71 was made, everyone of the facts now alleged by the plaintiff were known to him. I do not think that there is any substance in this argument. It is true the plaintiff does not say when the fraud same to the surface. He does not give the date, but that is really immaterial. He discovered all the facts on a date which must be a date subsequent to the-withdrawal of the suits by the pre-emptors in the High Court. That fact is a. substantial part of the alleged conspiracy among the several parties accused of it. The want of specific date therefore is immaterial. As for the petition at page 67 it was the petition by which Duli Chand offered to pay into Court the decretal amount and the penalty. Duli Chand did not then know and could not have known that the pre-emptors were also in league with the auction purchasers and the decree-holders and the judgment-debtors. For, the pre-emptors had not as yet withdrawn their suit by an application to the High Court. As for the judgment of the Court of the Subordinate Judge printed at page 71 the matter related only to Musai Singh pre-emptors application for being put into possession of the property he had preempted. This was also before Musai Singh had withdrawn his suit by an application to the High Court.
14. The result is there is no legal bar to the maintenance of the suit by the plaintiff and the suit was wrongly thrown out on a preliminary point.
15. The argument of the appellants' Counsel that the Collector had no jurisdiction to confirm the sale has no force and does not require serious consideration.
16. I would therefore, allow the appeal, set aside the decree of the Court of first instance and remand the suit for being disposed of according to law. I would point out that issue No. 4 is not sufficiently wide to cover the plaintiffs' case.
17. The matter for decision in this first appeal is short though the facts are somewhat lengthy. The plaintiff's suit sought the following reliefs:
1. That the auction sale of 21st June, 1920, be declared invalid and set aside, and that the plaintiff and his brother Duli Ghand be declared owner and in possession o the 10 annas share of village Dudhai.
2. That in the alternative to a declaration and possession over the property may be granted.
18. The suit was based on allegations of fraud, which the lower Court did not enquire into. It dismissed the suit as barred by rules framed by the Local Government under Section 69 of the Civil Procedure Code similar to the provisions of Order 21, Rule 92(3).
19. The litigation giving rise to the present suit may be shortly recapitulated here. An entire 16 annas mahal (formerly 13 annas 6 pies) of village Dudhai was mortgaged and the mortgagee obtained a decree for sale of this property on 13th July, 1918, against the mortgagors Basdeo Narain and others, defendant's third party. The plaintiff's brother Duli Chand was a party to the decree as a subsequent mortgagee under a deed, dated 7th July, 1913. On 20th September, 1918, Basdeo Narain and others sold their interest in the property to the plaintiff and his brother (p. 39) for Rs. 36,911 out of whirls Rs. 10,000 was left with the vendees to pay the decree of Bhajan Rai and others, defendant's second party, and the balance to pay the mortgage of Duli Chand and some decrees and pro-notes due to the plaintiffs and his brother.
20. The plaintiffs did not pay off the decree at once; obviously they were apprehensive of pre-emption suits which were actually brought on 27th October, 1919. There were three suits. On 30th March, 1920, two succeeded and the third was dismissed in the Court of the Subordinate Judge of Gorakhpur. The plaintiffs appealed to-this Court against the decrees in favour of Musai Singh and Rampurtab Singh, defendant's fourth party. Under the preemption decrees the pre-emptors were directed to deposit Rs. 26,911 in Gourfe and pay the decree of Bhajan Rai.
21. The decree was put into execution and the property for sale being ancestral, execution proceedings were transferred by the Civil Court to the Collector of the district under Section 68 of the Civil Procedure Code. The Collector sold it on 21st June, 1920, and the auction purchaser was defendant No. 1, Suraj Prasad. On 15th July, 1920, Duli Chand deposited the sale money with penalty and applied to have the sale set aside. The purchaser opposed the application and the Deputy Collector, acting for the Collector, refused to set aside the sale. This order was passed on 11th October, 1920, on the ground that Duli Chand had no longer any interest-in the property which had been pre-empted. Basdeo, judgment debtor also opposed the application for setting aside of the sale. The Court did notice that Duli Chand was subsequent mortgagee and a party to the decree but appears to have thought that the mortgage was merged in the transfer by way of sale, which in its turn had been cancelled by the pre-emption decree after the pre-emptor had deposited money in Court for payment to Duli Chand. The sale was confirmed by the Collector on 12th October, 1920. An appeal to the Commissioner was dismissed. On application to the Board of Revenue, it held that no revision lay.
22. On 8th November, 1921, both the successful pre-emptors withdrew their suits in this Court and they were dismissed. The result is that defendant No. 1, Suraj Prasad has become owner of the property on payment of Rs. 10,000 and the plaintiff has lost Rs. 23,911, which ho cannot recover now from any one.
23. Duli Chand is dead and his son is sixth party formal defendant to this suit.
24. The first contention of the learned Counsel that the Deputy Collector's order of 11th October, 1920, is not binding, without any allegation of fraud, is not tenable. Under Rule 32(2) framed by the Local Government corresponding to Rule 92(3) of Order 21 such an order is final. It was argued that where a person interested in the property deposited money in the way directed in Rule 89(1) (there is a corresponding rule framed by Government) the Collector must automatically make an order under Rule 92(2) setting aside the sale. So in refusing to do so, he acted without jurisdiction. This is begging the question that the person applying is held by the Collector to have an interest in the property. The Collector may wrongly decide that he hag not, and yet such an order will not be open to inquiry by a Civil Court. This is what has happened here. The case in Tuhi Ram v. Izzat Ali (1908) 30 All. 192 was based on the wording of Section 320 and Local Government rule corresponding to Section 312 of the former Code of 1882 and is not applicable now.
25. The attempt to distinguish between the plaintiff and Duli Chand must fail because the plaintiff has specifically accepted Duli Chand's action in the Sale Officer's Court as his own. On 2nd September, 1920, he objected to delivery of possession of property to the pre-emptor in the Court of the Additional Subordinate Judge of Gorakhpur. He declared in his application that he had deposited the entire decretal amount with penalty in the Sale Officer's Court. A copy of this application has been admitted as correct in the lower Court by the plaintiff's pleader. It is clear, therefore, that the plaintiff cannot plead ignorance of the sale and cannot disclaim responsibility for his brother's proceedings in the Sale Officer's Court.
26. The argument which deserves consideration is that the order confirming sale is liable to be set aside on the ground of fraud. Fraud is specifically urged in the plaint. The issue No. 4 framed by the lower Court narrows the scope of the inquiry contrary to the pleadings of the plaintiff. The issue runs : Has there been any fraud in conducting the sale?
27. The fraud alleged by the plaintiff covers a very wide ground. He alleged a conspiracy between the decree holder, judgment-debtor, pre-emptor and auction-purhaser to cause him loss by depriving him of the property and of the money recoverable by him from it. Ha alleged that the preemption suits were fictitious, only filed to prevent the plaintiff from paying off the decree in the apprehension that ha may lose the property in the pre-emption suits. When the plaintiff applied to have the sale set aside, the auction-purchaser and judgment-debtor objected though full price with penalty was deposited. The auction-purchaser was a friend of the decree-holder who was displeased at the private purchase by the plaintiff and wanted the property himself (page 14 replication by the plaintiff). The collusion of the pre-emptors was indicated by their not paying off the decree, though they deposited the far larger sum in Court for payment to the plaintiff, and by their withdrawing the suits after the auction sale was confirmed. The respondents' Counsel drew our attention to the fact that the present suit was filed on 25th September, 1921, that is, prior to the date of the High Court's order permitting withdrawal of the pre-emption suits. The fact however is mentioned in paragraph 5 of the plaint. Possibly the pre-emptors applied for withdrawal before the present suit was filed.
28. The respondents' Counsel argued that the plaintiff confined his allegation of fraud to sale proceedings only and referred us to the plaintiff's replication. The replication, however, was as answer to the defendant first party's specific inquiry as to details of fraud alleged by the plaintiff to have been practiced in connection with the sale proceedings.
29. We hold that the correct issue arising on the pleadings is:
Is the auction-sale voidable by reason of the fraud practised in obtaining its confirmation? To put it shortly, the charge against the defendants is that they conspired together to file fictitious preemption suits and by means of such fraud misled the Sale Officer into the beliefthat the suits were genuine and that; therefore the plaintiff had no interest in the property and could not make a deposit. The Commissioner's order is not relevant because if the Sale Officer had not been misled no opinion of the Commissioner would have been necessary. The principles on which a decree may be sat aside on the ground of fraud are laid down by a Bench of this Court in Janki Kuar v. Lachmi Narain (1915) 37 All. 535. Reference is made 'there to an English case. Sir John Rolt in Batch v. Ward (1868) 5 Ch. App. 203 discussing what; is meant by fraud when a decree may be impeached for fraud said : 'The fraud must foe actual positive fraud, or meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case and obtaining the decree fey that contrivance.' Fraud of such a character is alleged in the present suit.
30. Under Section 44 of the Evidence Act every party is competent to prove that any judgment or order proved against him was obtained by fraud or collusion. A Civil Court has jurisdiction to grant relief where it is sought on the ground of fraud.
31. The first argument on behalf of the respondents was that the plaintiff had suffered no damage and his position was in no way altered by the sale, so ha had no cause for redress As we have already pointed out, the success of the pre-emptors deprived him of property but he got his money back, while the auction sale deprived him of a large sum of close on Ra. 27,000 as wall. It will be difficult to conceive of a more flagrant case of damage.
32. The question, why plaintiff's brother Duli Chand did not allege fraud in his petition to have the sale sat aside and the plaintiff when he objected to delivery of possession to the preemptor, can only be answered when the evidence is gone into. It will be inadvisable for us to express any opinion on mare arguments and pleadings of parties.
33. It was pressed in argument that the remedy of the plaintiff lay under Section 47 in execution proceedings. The answer is short. The plaintiff did apply to the Civil Court in execution proceedings and ha was told both by the first Court and by this Court in appeal that a Civil Court executing the decree had no jurisdiction to interfere with a sale confirmed by the Collector under rules framed by the Local Government under Section 70 (Execution First Appeal from Order. No. 203 of 1923). A separate suit would not be maintainable if sale had bean held by the Civil Court and the plaintiff had desired to have it sat aside on the ground of fraud, Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 688, Reference was made to Sadho Chaudhri v. Abhenandan Prasad (1904) 26 All. 101 in support of the powers of the executing Civil Court to sat aside such a sale the decision however is of 1903 when the Coda of 1832 was in force.
34. The next question is whether the plaintiff could have applied to the Collector. We are of opinion that he could not. There is no rule framed under Section 70 to give the Collector such power. Various cases were quoted in support of different Powers of the Collector while executing a decree of sale of ancestral property. Muhammad Said Khan v. Prayaq Sahu (1894) 16 All. 228 Khushal Chand v. Nand Ram (1911) 35 Bom. 516, Shriniwas v. Jaggdevappa (1918) 42 Bom. 621, Sheo Rm Koeri v. Ikram-un-nissa A.I.R. 1923 All. 282.
35. We have examined all these cases. Every one of them covers some specific power granted to the Collector under rules framed by respective Local Governments. We may also point out that the first two casss considered the provisions of the Code of 1832 and not of the present Code.
36. The plaintiff cannot apply to the Collector under Section 47 because the Collector is not a Court. In Sections 68 to 72 the Court and Collector are kept distinct. If the Collector had been treated as a Court there would have been no necessity to enact Section 71 to give judicial authority to the orders of the Collector and his subordinates while conducting sales of ancestral property.
37. Much stress was laid on Government rule corresponding to Order 21, Rule 90(1) the suggestion being that it covered cases of general fraud the rule covers case3 of fraud of a particular kind in 'publishing or conducting' sale and not such wide collusion and fraud as are alleged in the present case. The authority of (1) Farhat-unnissa Bibi v. Sundari Prasad (1920) 18 A.L.J. 124, (2) Chulhi Upadhya v. Badri Upadhya A.I.R. 1921 All. 225, (3) Badri Singh v. Tulsi Bam A.I.R. 1923 All. 186 were cited for the pro position that an order by a Collector confirming a sale was final and cannot be revised by a Civil Court. In none of these cases it was alleged that the sale was voidable by reason of collusion and fraud which misled the Sale Officers. In the case reported in 18 A.L.J. 124 the details of the facts are not clear from the judgment but it appears that the fraud alleged was in connection with the publishing and conduct of the sale. Such a fraud would be covered by the Local Government Rule corresponding to the provisions of Order 21, Rule 90 and it would be within the province of the Collector to set aside the sale if satisfied with respect to the fraud. The ground for the setting aside of the sale was similar in the case reported in 45 All. 203. The case in 19 A. L.J. 232 affirms the well-established proposition that a Civil Court has no power to interfere with the procedure of the Collector in the execution of a decree which has been transferred to him under Section 68 of the Civil Procedure Code. In that case the action of the Collector was questioned and there was no allegation of a fraud committed by other parties so as to mislead the Collector into wrongly confirming the sale.
38. We have come to the conclusion that the allegations of fraud made by the plaintiff in the plaint must be enquired into and that the suit is not liable to dismissal summarily under the provisions of Order 21, Rule 92(3) or of any rule framed by the Local Government corresponding thereto.
39. We set aside the decree of the lower Court, alter issue No. 4 of that Court in terms noted above and remand the suit to it under Order 41, Rule 23 for trial on the merits. Costs here and heretofore shall abide the result.