1. This is a plaintiffs' appeal arising out of a suit for avoiding a decree and an execution sale in pursuance of it and for possession of the property sold at auction. A suit was brought by one Mt. Indar Kunwar and Gur Prasad, the former of whom died during the pendency of this appeal, and Gur Prasad is her heir qua her alleged share in the property. The allegations of the plaintiffs as put forward in the plaint were that defendant 1, Sah Dharam Narain, had by fraud obtained from the revenue Court a decree for arrears of revenue in 1920 against the plaintiffs by adopting secret proceedings as regards the service of summons and preventing the knowledge of the suit from reaching the plaintiffs; and that subsequently he got the decree executed and 5 biswa share in mauza Sharifabad sold at auction in a fraudulent and collusive proceeding of which knowledge was withheld from the plaintiffs. It was further asserted that the real purchaser was defendant 1 himself, although the property was knocked down in the name of defendant 2, Chandar Bhan.
2. Defendant 1 denied all allegations of fraud and also denied that he himself was the purchaser. It was further pleaded that the sale had taken place in execution of more than one decree and that the other decree-holder had not been impleaded. It was also urged that the suit was not maintainable, Similarly defendant 2 pleaded that the suit was not maintainable and also denied all allegations of fraud. He also asserted that he himself was the real purchaser and that another decree-holder had not been impleaded in the suit which was accordingly defective.
3. The learned Subordinate Judge has found that the allegations of the plaintiffs as regards any fraud in obtaining the decree or the auction sale has not been established, and has accordingly dismissed the suit. The plaintiffs have appealed to this Court and challenge that finding.
4. In the first place it is quite clear that it is not open to the plaintiffs to get the auction sale set aside by this suit on the ground of any fraud in the conduct or proclamation of the sale. For that their remedy was under Order 21 only and no separate suit lies. The sale took place in execution of a decree for arrears of; revenue under Section 160, Agra Tenancy Act (Act 2 of 1901). Under Section 193 of that Act the Civil Procedure Code was applicable to the proceedings in the revenue Court except the provisions excluded thereunder. Sections 312 and 314 falling under Chap. 19 of the old Code were not so excluded. O, 21 of the new Civil Procedure Code corresponds to that chapter and is, therefore, not excluded from applicability to revenue Courts. This is quite clear from the provisions of Section 153, Civil P.C., under which references to the old Code have to be substituted by those to the corresponding provisions in the new Code. We have already stated that this was the execution of a revenue Court decree and not a decree of a civil Court transferred to the revenue Court to which Sch. 3, Civil P.C., might apply.
5. Under Order 21, Rule 90, a sale can be set aside by the execution Court on the ground of material irregularity or fraud in publishing or conducting it. If such application is made and refused or not made and the sale is confirmed, then Order 21, Rule 92(3), expressly provides that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made. It is, therefore, quite clear that the plaintiffs were not entitled in this suit to challenge the sale on the ground of any alleged fraud in respect of its conduct or publication.
6. This, however, would not prevent them from challenging it on the ground that the decree itself had been obtained by fraud, or that fraud was committed earlier than the stage of the commencement of the conduct or proclamation of the sale.
7. The second serious difficulty in the way of the plaintiffs which has not been prominently noticed by the Court below is that the sale actually took place for the satisfaction of two decrees, one in favour of Sah Dharam Narain and his co-decree-holder Mt. Tulsha Dei, and the other of Mt. Ram Dei. Mt. Ram Dei's decree was of 27th. August 1923, (p. 59) and had been obtained after contest and appearance of at least one if not both the judgment-debtors through a mukhtariam (order sheet, p. 57). There is no allegation in the plaint that this decree had been obtained fraudulently. While the execution proceedings consequent upon the decree in favour of Dharam Narain was pending Mt. Ram Dei applied to the Court that the amount of her decree should be realised along with the sale of the share in Sharifabad, which had been fixed for 20th May following in execution of the other decree (order-sheet p. 77). The Court granted this application by ordering that her amount should be included in the other decree and that the order for sale should cover both, and that the sale should be for the realisation of the amounts of both the decrees: Rs. 243 due to her and Rs. 60-12-0 due to Dharam Narain. The Court further granted Mt. Ram Dei, the decree-holder, permission to bid on condition that she should offer a reasonable price and pay the money in cash (p. 79). The statement showing the auction bids printed on p. 81 also shows that the sale took place for the realisation of the consolidated amount of Rs. 303-12-0. The same is also made clear by the sale certificate printed on p. 83. It cannot, therefore, be disputed that Mt. Ram Dei, the other decree-holder, was equally interested in the execution and the sale, and there is no allegation of fraud as against her. Her decree was at the time not more than one year old and no notice to the judgment-debtors under Order 21, Rule 22(1) was necessary. Furthermore, as she had applied for rateable distribution, her claim must be deemed to be a claim enforceable under an attachment in view of the explanation to Section 64, Civil P.C. There was no necessity for her to apply for a fresh attachment or to have any separate proceeding resulting in an independent auction sale. It is thus clear that the two decrees had been consolidated and the sale took place in execution of both the decrees, one of which has not been challenged on the ground of any illegal fraud. We are, therefore, of opinion that the sale which was one and was for one bid cannot be set aside.
8. Coming to the question of fact, all that has been shown is that the summonses in the original suit of Dharam Narain were not served personally on the judgment-debtors. The addresses of the two defendants given were of village Kishni, which admittedly is the residential house of the family, and where Gur Prasad, the male defendant who was the brother-in-law of the other lady, admittedly lived. The oral evidence led on behalf of the plaintiffs was to the effect that after the death of her husband Mt. Indar Kunwar had been living at the house of her father in Bareona which, though situated in a different district, is, according to the evidence of Jagannath Prasad, 12 miles from Kishni. But apart from the oral evidence whatever documentary evidence there is rather goes to suggest that Mt. Indar Kunwar also lived at Kishni or at any rate came there now and again. Data Ram, the patwari of Kishni has admitted that up to the current year's khewat he had been recording Mt. Indar Kunwar as a resident of the village, although he explains this by saying that he simply followed the previous records. It is also quite clear that in Mt. Ram Dei's suit the residence of Mt. Indar Kunwar was shown as Kishni. The process server's report printed at p. 43 shows that the peon filed an affidavit stating that he had affixed the summons at the door of the house of the two defendants, that Indar Kunwar was a pardanashin lady and that Gur Prasad had gone away to Mainpuri. As the report stands, it does not suggest that any one informed the peon that Indar Kunwar was not in the house. There is nothing to show that the decree-holder's pairokar accompanied the peon or took any part in getting this report submitted. In the absence of such evidence it cannot be inferred from the mere fact of substituted service that there was any fraud committed by the decree-holder. Subsequently a notice of the prohibitory order under Order 21, Rule 54 was also sent. According to the statement of Baldeo Prasad, the chaprasi of the tahsil, it was affixed on a nim tree in the presence of many persons and the report was written by the village patwari. As the decree-holders were not co-sharers of Sharifabad where this notice was affixed, it cannot in the absence of any direct evidence be assumed that the patwari was or might have been in collusion with the decree-holder. In the ordinary course one would expect the patwari to convey the information to his own zamindars among whom were the judgment-debtors. In this case also there is no direct evidence to suggest any fraud. Before the proclamation of sale was issued the decree-holder filed a certificate of search (p. 63) which clearly showed that an incurnbrance was created by Gur Prasad alone, who owned a moiety share in the 5 biswas, but the proclamation of sale which was actually issued by the office of the Court did not clearly specify that. For this omission of detail the decree-holder cannot be held responsible.
9. We have referred to the subsequent proceedings in order to meet the argument that the subsequent conduct of the decree-holder is some evidence of the initial fraud committed by him in the suit itself, otherwise the subsequent proceedings even if fraudulent would not be relevant. We are satisfied that the learned Subordinate Judge was right in holding that no such fraud has actually been established by the evidence. It is true that very often direct and positive evidence to prove fraud cannot be procured, but at the same time a finding cannot be based on mere suspicions.
10. There is no doubt that the property has been sold very cheap, particularly when it is to be borne in mind that 2 biswas share of Mt. Indar Kunwar was entirely free from any incumbrance. According to the learned Subordinate Judge the value of the property might be Rs. 10,000 to Rs. 15,000, and it was sold at auction for Rs. 300 and odd. This may be merely the good luck of the purchaser. If the plaintiffs have suffered any loss it is due to their carelessness or acting on wrong advice.
11. We may state that apart from some distant connexion between Sah Dharam Narain and Chandra Bhan there is no evidence on the record to establish that Chandra Bhan is a benamidar. Dharam Narain, both in his deposition and written statement, disclaimed all interest in this property, and Chandra Bhan in his evidence has claimed to have purchased it. He appears to be a man of substance and has also produced his bahi to prove the consideration. The amount paid was small and it is impossible to assume that Chandra Bhan was not in a position to pay it. The sale certificate stands in his favour. The result, therefore, is that this appeal is dismissed with costs.