1. This is an appeal from an order refusing to set aside a sale on the ground of fraud. The learned Judge has dismissed the application on two grounds : (1) that in view of a previous application under Order 21, Rule 89, having been made and pressed, the present application was not maintainable; and (2) that the allegations contained in the application were not sufficient to bring the case within Section 18 of the Indian Limitation Act. The learned Subordinate Judge without allowing the appellant any opportunity to prove the allegations made by her in the application has dismissed the application after hearing arguments only.
2. In execution of a decree, as well as for some further amount of which the decree-holder claimed that he was entitled to a refund, the property in question was put up for sale and sold on the 2lst of January. 1924. No application under Order 21, Rule 90, was made by the judgment-debto within 30 days of this date; but, on the 19th of February 1924, she put in an application under Order 21, Rule 89, praying that the sale be set aside on payment of the decretal amount, the costs etc. It so happened that the amount deposited by her was short by a few rupees. The matter was argued, and on the 1st of March 1924, she tiled a supplementary application offering to make good the balance. This application was refused. While the application was still being argued another application under Order 21, Rule 90, was filed which was registered after the application under Order 21, Rule 89, had been dismissed.
3. The learned Subordinate Judge Was of opinion that inasmuch as the applicant did not withdraw her application under Order 21, Rule 89, but pressed it seriously, and as it was ultimately dismissed on the merits, it must be presumed that she had withdrawn her application under Order 21, Rule 90. This is based on the provision contained in Order 21, Rule 89, Sub-clause (2), under which it is provided that where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under Rule 89. It seems to us that the Court ought to have called upon the applicant's counsel to make his election either to withdraw her application under Rule 90 or not. If he declined to do so the Court should not have allowed him to press his application under Order 21, Rule 89. But from the fact that he was not called upon to make his choice it would be too much to presume that he withdrew his application under Rule 90, particularly when the order sheet shows that the application was argued at length and the judgment was not pronounced on that date merely because it was too late. In our opinion the converse proposition that an application under Order 21, Rule 89, having been heard and disposed of, an application under Order 21, Rule 90, is not maintainable does not necessarily follow from Sub-clause (2) of Rule 89.
4. As to the second point the learned Judge says that the allegations of fraud in the application are too general, and it is not alleged that the decree-holder kept the judgment-debtor from the knowledge of the fraud entitling her to make an application under Order 21, Rule 90. This in our opinion is not at all correct. In para. 2 of the application the judgment-debtor alleged that the decree-holder cunningly and fraudulently kept all the execution proceedings concealed from the petitioner from the very beginning, and all the notifications to the petitioner wore caused by the decree-holder to be issued to her under a wrong address which was deliberately and intentionally filed in order to conceal the proceedings, and entirely fictitious reports of service, with names of fictitious persons as witnesses were caused to be made in collusion with the process-server. She repeats the allegation as to false address in para. 3, and she repeats her allegation of the concealment of these proceedings in para. 4, and finally in para. 12 she says that the petitioner had no knowledge whatsoever of the proceedings till the 15th of February 1924, and that she remained in the dark owing to the deception practised by the decree-holder.
5. It is urged by the learned vakil for the respondent that, even if there was a fraudulent concealment of the proceedings by the decree-holder up to the time of sale, this does not entitle her to claim the benefit of Section 18 of the Limitation Act. The contention before us has been that it is necessary for the petitioner to allege and prove that after the sale, when the right to apply accrued, there was some fraud practised by the decree-holder, which kept her right to apply concealed from her. It seems to us that this contention is not sound. If it be assumed that, owing to the fraudulent concealment of the proceedings by the decree-holder all knowledge of the proceedings up to the time of sale was withheld, from the petitioner, then, so long as she did not come to know of the sale, the effect of the fraud continued, and the only conclusion to which we can come is that she had been kept from the knowledge of the sale in consequence of the initial fraud practises by the decree-holder. It is only after she became aware of the sale that she came to know of her right to apply. Her case is that she did not come to know of this right earlier because of the fraud originally practised by the decree-holder.
6. We accordingly allow this appeal, and, setting aside the order of the lower Courts send the case back to that Court for disposal according to law. Costs of these proceedings will abide the result. The costs in this Court will include fees on the higher scale.