S. Barman, J.
1. The auction-purchaser in an execution sale is the petitioner in this Civil Revision directed against an appellate order of the Additional District Magistrate, Cuttack, in execution appeal No. 22 of 1956-57 whereby he, -- in reversal of the order of the Rent Suit Deputy Collector, --set aside the sale in execution on the ground of fraud on an application under Section 228(2) of the Orissa Tenancy Act (Bihar and Orissa Act II of 1913).
2. The matter arose thus: In a certain execution case being Execution Case No. 414 of 1952-1953 the Rent Suit Deputy Collector put to sale the properties of the judgment-debtors being opposite parties Nos. 1 and 2 herein. On March, 15,1954 the present petitioner in revision purchased the property being 0.48 cents in area for a sum of Rs. 25/- in the said execution auction sale. On July 14, 1954 the judgment-debtor opposite party No. 1 filed an application for setting aside the sale on the around of fraud under Section 228(2) of the Orissa Tenancy Act.
The broad allegations of the alleged fraud were that the said judgment-debtor did not come to know of the said sale until July 3, 1954. He further alleged that the peon did not go to the locality and that his report was not correct. On 22-1-1956 the Rent Suit Deputy Collector dismissed the said application for setting aside the sale holding that the sale notices were duly served and that the applicant failed to prove the alleged fraud in the service and further that the applicant was not entitled to the privilege allowed under section 18 of the Indian Limitation Act,
On appeal, from the said order, the learned Additional District Magistrate on January 25, 1958 allowed the appeal holding that the application had been filed in time and accordingly set aside the said order of the Rent Court Deputy Collector. Hence this revision.
3. Mr. R.N. Sinha, learned counsel appearing for the petitioner auction-purchaser contended that no particulars of fraud having been alleged or proved and further there having been no finding of fraud by the learned Additional District Magistrate in appeal against the auction-purchaser, --the judgment-debtors could not take shelter under section 18 of the Limitation Act. Section 18 of the Limitation Act reads as follows:
'Where any person having a right to institute a suit or to make an application has, by means of fraud, been kept from the knowledge of. such right or of the title on which it is founded,
where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application,--
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming through him or otherwise than in good faith and for a valuable consideration,
shall be computed from the time when the fraud first, became known to the person injuriously affected thereby, or, in case of the concealed document when ho first had the means of producing it or compelling its production.'
It is clear from the section that the suit or the application which the section protects from being barred by limitation on the ground of alleged fraud, must be an application against the person guilty of fraud or accessory thereto or against any person claiming through him otherwise than in good faithand for a valuable consideration, Keeping in view these provisions in the section, the judgment-debtors must prove fraud against the auction-purchaser to whom the property was sold.
In the present case no fraud has been proved against the auction purchaser. The Calcutta High Court in Abul Tamil Samsul Hamid Choudhury v. Ambia Khatun, 43 Cal WN 862: (AIR 1939 Cal 663) held that when a judgment-debtor filed a time barred application to set aside the Civil Court sale and asks to invoke the aid of Section 18 of the Limitation Act, the initial onus lies very heavily upon him to show that by reason of fraudulent concealment on the part of the person against whom he has made the application, he has been kept from the knowledge of his right to file the same.
The point to he considered in connection with such initial onus is not whether fraud was committed in publishing or conducting the sale but whether fraud was committed on the applicant to set aside the sale by concealment from him his right to apply to have the sale set aside. The nature of the fraud to be proved is essentially different in the two cases. The Calcutta High Court remanded the case to the Court below for reconsideration in the light of the observations made in the said judgment.
This High Court in a recent unrcported decision in Chimamoni Moharana v. Krushnaparsad Singh, Civil Revn. No. 115 of 1958: (AIR 1960 Orissa 75) made it clear that lower courts sometimes overlook the aspect that the meaning of fraud in Section 18 of the Limitation Act has some other context different from the meaning and import of the word 'fraud' in Section 228(2) of the Orissa Tenancy Act as fully discussed in the said decision. This High Court in another unreported decision in Bhramar Senapati v. Satyabadi Senapati, Civil Revn. No. 4V of 1955 held that it is incumbent upon the judgment-debtor applicant to set aside the sale to prove not only that he was kept out of knowledge of the date of sale or the right to file the application, but also that this was due to the fraud of the person against whom he claims the relief.
To bring the case under Section 18, there must be a categorical finding to the effect that the judgment-debtor was kept out of the knowledge of the sale or his right to file an application to set aside the sale by fraud or that the auction-purchaser was an accessory to that fraud. In that particular case there was absolutely no statement with regard to the facts required to be proved under Section 18 of the Limitation Act.
Under those circumstances as there wag no finding with regard to the requirement of Section 18 and presumably there was no evidence with regard to that, this High Court held that the petition under Order 21, Rule 90, Civil Procedure Code (which is almost in the same language as Section 228(2) of the Orissa Tenancy Act as aforesaid) filed more than seven months after the date of sale was barred by time. The Patna High Court in Biharilal Mitter v. Tanuk Lal Mander, 8 Pat LT 28: (AIR 1926 Pat 397) held that fraud is the result of deliberate contrivance on the part of a party for his own advantage.
The finding of negligence or carelessness on the part of a process-server or identifier is an entirely insufficient basis for A finding of a fraud. In Das Narayan Singh v. Mir Mahammad Yusuf 2 Pat LT 401: (AIR 1921 Pat 145) it was held by the Patna High Court that where the judgment-debtor applies to have the execution sale set aside on the ground of fraud in the conduct of the sale and seeks to take advantage of Section 18 of the Limitation Act the Court isbound to find when and how the fraud was committed and as to whether the judgment-debtor was kept out o the knowledge of the execution proceedings and the sale.
There must be a distinct allegation of fraud in the petition and the party relying upon fraud must state seriatim and in detail the facts constituting the fraud fa vague or general allegation of fraud being of no avail). He must state further as to how the fraud was practised, how he was kept out of the knowledge of the execution proceeding and the sale, and how he came to know of the sale. The omission to issue notice under Order 21 Rule 22. Civil Procedure Code renders the sale to be without jurisdiction inasmuch as notice under Order 21, Rule 22 is the foundation of the execution of a decree presented more than a year after the date of the decree. But an irregularity in the service of the notice is, quite a different thing from the absence of the issue ot such notice. The former relates to procedure and the latter goes to the root of the jurisdiction of the Court.
4. In the present case before me, I am not satisfied that the learned Additional District Magistrate or the Kent Suit Deputy Collector approached the matter from the correct point of view of the law. The courts below appear to have acted in the exercise of their jurisdiction illegally or with material irregularity. Piece-meal adjudication of issues in a perfunctory manner has been repeatedly deprecated by the Privy Council and the Supreme Court; and any finding based on such adjudication is clearly vulnerable and cannot be sustained in law. This calls for interference by this court in its revisional jurisdiction under Section 115 Civil Procedure Code. I think that this is a fit case for remand to the Rent Suit Deputy Collector so as to enable him to give his findings according to law on the specific issues before him in the light of the observations made in the judgment.
5. In this view of the matter I allow this revision, set aside the orders of the Courts below andremand the case to the Rent Suit Deputy Collector to give, on reconsideration, specific findings asto fraud in terms of Section 18 of the Limitation Acton the question of limitation; and also specific finding, on merits, as to the alleged material irregularity or fraud in publishing or conducting the saleand whether by reason of such irregularity or fraudif any, the judgment-debtors sustained substantialinjury as required by Section 228(2) of the Orissa Tenancy Act and give his decision according to law.Costs will abide the result.