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Smt. Brajabala Das Vs. Radha Kamal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 288 of 1966
Judge
Reported inAIR1969Ori63; 34(1968)CLT1258
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 4 - Order 7, Rule 6 - Order 21, Rule 90; Limitation Act, 1963 - Sections 17; Limitation Act, 1908 - Sections 18
AppellantSmt. Brajabala Das
RespondentRadha Kamal Das and ors.
Appellant AdvocateG. Rath, Adv.
Respondent AdvocateL.K. Dasgupta and ;G.N. Sengupta, Advs.
DispositionApplication dismissed
Cases ReferredIn Pandurang v. Maruti
Excerpt:
.....offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubt. the contention is well founded. as well as in court, opposite party no......disputed property was attached on 18-7-54. they received valuation notice and filed no objection. sale-proclamation was issued on 21-9-54. opposite party no. 2 applied for instalments which were allowed. he paid rs. 700 in six instalments in between 16-7-55 and 30-4-56. thereafter he defaulted. the total decretal dues were rs. 1284-9-0. there remained thus a balance of rs. 500 and odd out of the decretal dues, without payment. a fresh sale-proclamation was issued on 20-11-59. it was published in the daily prajatantra on 26-12-59 andalso at the site by beat of drums. the sale took place on 15-1-60 and the property was purchased by the petitioner who was the sale bidder at the auction sale. the sale was confirmed on 19-2-60. possession of the lands was delivered to the auction-purchaser.....
Judgment:
ORDER

G.K. Misra, J.

1. Petitioner Brajabala (auction-purchaser) is the wife of opposite party No. 2 Radha Kumuda Das (one of the judgment-debtors), who is the elder brother of opposite party No. 1 Radha Kamal Das (the other judgment-debtor). Opposite Party No. 3 is the decree-holder.

Both the judgment-debtors received notice under Order 21, Rule 22, C. P. C. in Execution Case No. 62 of 1954 in the Court of the Munsif Balasore, arising out of a money suit No. 1277 of 1941 of the court of the Munsif, Kendrapara. Judgment-debtors took no steps. The disputed property was attached on 18-7-54. They received valuation notice and filed no objection. Sale-proclamation was issued on 21-9-54. Opposite Party No. 2 applied for instalments which were allowed. He paid Rs. 700 in six instalments in between 16-7-55 and 30-4-56. Thereafter he defaulted. The total decretal dues were Rs. 1284-9-0. There remained thus a balance of Rs. 500 and odd out of the decretal dues, without payment. A fresh sale-proclamation was issued on 20-11-59. It was published in the daily Prajatantra on 26-12-59 andalso at the site by beat of drums. The sale took place on 15-1-60 and the property was purchased by the petitioner who was the sale bidder at the auction sale. The sale was confirmed on 19-2-60. Possession of the lands was delivered to the auction-purchaser on 1-8-62. Opposite Party No. 1 filed an application under Order 21, Rule 90, C. P. C. on 11-4-64 for setting aside the sale. In the application it was alleged that the decree-holder in collusion with the auction-purchaser and her husband fraudulently suppressed the sale-proclamation which was not published at the site and that opposite party No. 1 had no knowledge of the sale as a result of such fraud and consequently he was unable to make an application under Order 21, Rule 90 in time. He accordingly invoked the protection of Section 17 of the Limitation Act, 1963 (hereinafter referred to as the new Act.)

Opposite parties 2 and 3 did not contest. The petitioner contested the application saying that there was no material irregularity or fraud in publishing the sale-proclamation and that opposite party No. 1 was not entitled to invoke the aid of Section 17 of the new Act.

The learned Munsif held that fraud was not established and the application under Order 21, Rule 90 was barred by limitation. The learned Subordinate Judge in appeal held that a valuable property worth Rs. 7000 was sold for a grossly low value of Rs. 900 that there was fraudulent suppression of the sale-proclamation at the instance of opposite party No. 2 and that the application was within time as opposite party No. 1 was entitled to the protection of Section 17 of the new Act. He accordingly set aside the sale. Against the judgment setting aside the sale, the civil revision has been filed.

2. There is no dispute that a valuable property containing houses, orchard and two tanks upon an area of 2.75 acres and odd of land within the municipal area of Balasore town by the side of the main road, has been sold for a shockingly low sum of Rs. 900 in an auction sale where the auction-purchaser, wife of one of the judgment-debtors was the sale bidder. The learned lower appellate court has found that the sale-proclamation was not published in the locality.

Order 21, Rule 90, C. P. C., so far as relevant, runs thus:

Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to a share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it;

Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

The finding of the Subordinate Judge that the sale-proclamation was not served at the site is a pure finding of fact which cannot be disturbed in revision. If the finding is accepted, clearly there was material irregularity in publishing the sale. There is also no dispute that Opposite Party No. 1 sustained substantial injury on account of sale of a valuable property at a shockingly low price. This, injury was caused to him by reason of the irregularity.

On the aforesaid analysis the sale is bound to be set aside under Order 21, Rule 90, C. P. C. even if fraud in publishing the sale is not established. Mr. Rath does not accordingly assail the conclusion of the lower appellate court that the sale is liable to be set aside under Order 21, Rule 90, C. P. C.

3. Under Article 166 of the Limitation Act, 1908 (hereinafter referred to as the Old Act), the period of limitation to set aside a sale in execution of a decree including any such application by a judgment-debtor was thirty days from the date of the sale. The sale having taken place in 1960, Article 166 of the Old Act applied and the application under Order 21, Rule 90, C. P. C. having been filed on 11-4-64, about four years after, is barred by limitation unless time is saved under Section 17 of the New Act.

4. Section 17 of the New Act, so far as relevant, runs thus:

17. (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act-

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid

(c) x x x(d) x x x the period of limitation shall not beginto run until the plaintiff or applicant hasdiscovered the fraud or the mistake orcould, with reasonable diligence, havediscovered it; x x x x

Section 18 of the Old Act has been recastin Section 17 of the New Act on the linesof Section 26 of Limitation Act, 1939 ofthe United Kingdom. The expression'could with reasonable diligence havediscovered it' has been newly introduced in Section 17 which was not a part ofSection 18 of the Old Act.

5. To decide whether in the facts and circumstances of this case, opposite partyNo. 1 is entitled to the benefits of Section 17 of the New Act, it is necessary to examine the scope and ambit of Section 17. Before an applicant takes advantage of the section, the onus is on him to plead and prove fraud.

Order 6, Rule 4 lays down that in all cases in which the party pleading relies on fraud, particulars with dates and items, if necessary, shall be stated in the pleading. Order 7, Rule 6 requires that where a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. The same principle applies to an application. As to the quantum of proof, the Judicial Committee in Satish Chandra v. Satis Kantha Roy, AIR 1923 PC 73 laid down thus:

'Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who make them -- proved by established facts or inferences, legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires the every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterious knave would escape'.

The same view was taken in Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., AIR 1940 PC 98 and Narayanan v. Official Assignee, Rangoon, AIR 1941 PC 93. Fraud like any other charges of the criminal offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion or conjecture.

Therefore opposite party No. 1 must, in the first instance establish that the petitioner was guilty of fraud in the matter of suppression of the sale-proclamation.

6. If fraud is established, then the onus would shift to the petitioner to prove that influence of the fraud has ceased to operate, or that opposite party No. 1 could have with reasonable diligence discovered the fraud. In Rahimbhoy v. C. A. Turner, (1893) 20 Ind App 1 (PC) their Lordships of the Judicial Committee observed thus:

'Their Lordships consider that when a man has committed a fraud and has got property thereby, it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute fraud, at a timewhich is too remote to allow him to bring the suit'.

This has been consistently followed in all subsequent Indian decisions. In Nara-yan Sahu v. Damodar Das, 16 Cal WN 894 Sir Lawrence Jenkins made the following observations:

'But it was a saying of an early Chancellor, that frost and fraud end in foul; and in this lies the truth of the matter. Fraud at any rate the class of fraud with which we are here concerned, is a continuing influence and until that influence ends, it retains its power of mischief'.

The fraud referred to in that case was regarding the fraudulent concealment of the sale-proclamation as in this case, and the application under Order 21, Rule 90 had been filed invoking the aid of Section 18 of the Old Act. A Full Bench of the Calcutta High Court in Biman Chan-dra v. Promotho Nath, AIR 1922 Cal 157 (FB), reviewed the entire position and followed the aforesaid view. Their Lordships held that a person who desired to invoke the aid of Section 18 of the Old Act must establish that there was fraud. Once that was established, the burden would shift to the other side to show that the plaintiff had knowledge of the transaction beyond the period of limitation. It is to be emphasised that such knowledge must be clear and definite of the facts constituting the particular fraud. It is not sufficient to show that the applicant under Order 21, Rule 90 had some clues and hints which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of fraud.

If opposite party No. 1 is successful in establishing that the petitioner was guilty of fraud in suppressing the sale-proclamation, the onus would shift to the petitioner not merely to establish that opposite party No. 1 had a vague knowledge or opinion of the sale but that he had a full knowledge of all the facts resulting in the sale.

7. It is, therefore, necessary to examine whether opposite party No. 1 has established that the auction-purchaser or her husband were parties to the fraudulent suppression of the sale-proclamation as a result of which opposite party No. 1 did not know about the sale. The discussion of the learned Subordinate Judge on this part of the case may be extracted:

'It is peculiarly strange that to bid for such valuable property there was no contesting bidder. The only bidder is the wife of the judgment-debtor No. 1 who is a registered clerk of an Advocate of the Local Bar. The witness to the publication of sale notice -- Ram Chandra Naik is also a Muharir, The drummer is also not an outsider but is sweeper of the court. The other witness is also thelaw agent of the Balasore Municipality. This will show that all these persons, frequenting courts, joined hands, but one of them i.e. the law agent of the Municipality forsook them at last and deposed that while returning from Sri K. M. Das's (Advocate of the Municipality) house, the peon met him on the way and asked him to sign as witness and accordingly he signed in Ext. 5 the proclamation at Ex. 5(a)'.

Mr. Rath contends that this finding Is not based on evidence, and even if it is accepted it does not establish suppression of the sale-proclamation at the instance of the petitioner or her husband. The contention is well founded. Mr. Dasgupta was called upon to collate the entire evidence in the case which would establish the association, of the auction-purchaser or her husband in the fraudulent suppression of the sale-proclamation. He was constrained to admit that there was no such evidence. The statement of Mr. Dasgupta is correct as would appear from the deposition of opposite party No. 1 himself, which was completely overlooked by the learned Subordinate Judge. He stated thus:

'I do not know anything about the collusive actions of the decree-holder and my brother'. There is not a single sentence in the evidence of Radha Kamal Das (P. W. 1) to suggest any part to his elder brother or his wife in the matter of fraudulent suppression of summons, if it was so. Other witnesses examined on his behalf also do not make a single statement that the auction-purchaser or her husband approached either the process-server or the witnesses to the sale proclamation to get it suppressed or to obtain their signature falsely at other places. There is, therefore, no evidence on record that the auction-purchaser or her husband were parties to any fraud. Fraud has not been established at all much less beyond reasonable doubt.

8. In view of the aforesaid conclusion, the second question, whether influence of fraud came to an end, does not arise for consideration. Mr. Rath's argument may, however, be noticed. He contends that both in the application under Order 21, Rule 90, C. P. C. as well as in Court, Opposite Party No. 1 admitted that he had knowledge of the sale when the summons in the criminal case was served on him on 28-2-64. The application under Order 21, Rule 90 was filed on 11-4-64. It is accordingly contended that the application was filed beyond 30 days from the date of the knowledge of fraud, and that unless opposite party No. 1 explains that with reasonable diligence he could not avoid each day of subsequent delay, the application is barred by time. The contention, though ingenious, has no substance and is directly contrary to thelegal position already analysed by me. Knowledge of fraud must not be vague but clear and definite of all facts constituting the fraud. Both in the application under Order 21, Rule 90 and in his deposition, opposite party No. 1 stated that he had knowledge of the sale on 28-2-64 from the summons in the criminal case, The summons merely refers to purchase of the disputed property by the petitioner in an auction sale. It does not give any definite knowledge to opposite party No. 1 as to how and when his property was purchased by the petitioner. Necessarily he had to make inquiry. He went to Court and made inspection of the records. In course of so doing about fifteen days more elapsed. There cannot be any escape from the conclusion that after he got vague knowledge of the sale, with due diligence he pursued the inquiry and until he got information by inspection on 18-3-64, the influence of the fraud on him did not come to an end. The second contention of Mr. Rath has therefore no force. If I had held that the petitioner or her husband were guilty of fraudulent suppression of the sale proclamation, I would have held that under Section 17 of the New Act, opposite party No. 1 would have been entitled to the benefit of the entire period and the application under Order 21, Rule 90 C. P. C. would have been, in time.

9. The next question for consideration is whether the finding of fraud recorded by the lower appellate Court can be interfered with in revision under Section 115, C. P. C. As has been already stated, there is no evidence that the petitioner or her husband were guilty of fraudulent suppression of the sale-proclamation. Even if all the facts found by the learned Sub-Judge are accepted, they do not lead to the conclusion of fraud. His judgment is therefore contrary to law.

In Pandurang v. Maruti, AIR 1966 SC 153 the powers of this Court under Section 115 have been fully analysed. If a subordinate Court itself commits error of law and the said error has relation to the question of jurisdiction of the Court to try the dispute, then the High Court can interfere. It was held therein that a plea of limitation or of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on those pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision on these pleas can be said to be concerned with the question of jurisdiction falling within the purview of Section 115, C. P. C.

The learned Subordinate Judge committing an error of law on the question of fraud gave himself a jurisdiction to try the application under Order 21, Rule 90,C. P. C. which did not vest in him. Interference in civil revision is accordingly justified.

10. In the facts and circumstances of this case a question whether a purchase by the auction-purchaser enures to the benefit of opposite party No. 1 under Section 90 of the Trusts Act would ordinarily arise. But such a question is not germane to an application under Order 21, Rule 90, C. P. C, and is beyond its scope. It is, therefore, unnecessary to have any discussion on that question.

11. In the result, the judgment of the learned Subordinate Judge is set aside and the application under Order 21, Rule 90, C. P. C. is dismissed. The Civil Revision is allowed; but in the circumstances, parties to bear their own costs throughout.


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