Horce Owen Compton Beasley, Kt., C.J.
1. The facts out of which this appeal arises are as follows. The judgment-debtor is the appellant and a decree in O.S. No. 22 of 1924, which was a suit upon a promissory note, was passed against him. His property was brought to sale in execution of the decree and was purchased by the 3rd respondent in the sale held on 11th July, 1927. It is alleged that this purchase by the 3rd respondent was benami for respondents 1 and 2, the decree-holders. On the 13th August, 1927, the sale was confirmed and then on the 9th July, 1928, the appellant under. Order 21, Rule 90 and Sections 47 and 151, Civil Procedure Code, put in an application to set aside the confirmation of that sale. This application had to be made within 30 days and clearly, but for Section 18 of the Limitation Act, if it is to be applicable to this case, was barred. The appellant alleged that his application was not barred by reason of the fact that he only discovered the fraud within the 30 days of the making of the application and that under Section 18 of the Limitation Act time does not run until the fraud is discovered. Hence the appellant alleged that his application to set aside the confirmation of the sale was not barred.
2. The question before us now is whether Section 18 of the Limitation Act applies to the case where a person alleges the fraud not of a decree-holder but of some other person, a party to the sale, such as the auction-purchaser here. In the Lower Court the application was dismissed in limine because the Court held that Section 18 of the Limitation Act does not apply to auction-purchasers. Upon this point there has been no decided case at all except Azizannessa v. Dwarika Prosad Boral (1924) 86 I.C. 745 a decision of a Bench of the Calcutta High Court consisting of Chotzner and Graham, JJ. In that case this question directly arose. Beyond that decision there is no decision at all upon the point although in Mohendro Narain Chaturaj v. Gopal Mondul I.L.R.(1890) Cal. 769, Kailash Chandra Haider v. Bissonath Paramanic 1 C.W.N. 69 and Nabin Chandra Haldar v. Bipin Chandra Haldar (1925) 87 I.C. 555 there are observations which support the argument put forward on behalf of the appellant before us to-day. But since in those cases this question exactly did not arise, they are mere observations although very useful ones. So far as this High Court is concerned, there is no reported decision upon the question. What we have got to consider here is whether the words of Section 18 of the Limitation Act are sufficiently wide to include any person whose fraud has kept from the knowledge of another person his right to institute a suit or make an application. The words of the section are:
Where any person having a right to institute a suit or 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, ...the time limited for instituting a suit or making an application (a) against the person guilty of the fraud or accessory thereto shall be computed from the time when the fraud first became known to the person injuriously affected thereby.
3. If the words of the section are to be followed, then any person whose fraud has kept from another person the knowledge of his right to institute a suit or make an application is within the provisions of that section. There has been no discussion of the merits of the case in the Lower Court. But it seems to me that if the appellant here is able to show that the auction-purchaser in this case committed such a fraud as brought about the circumstances which appear in the first part of the section then his application to have the confirmation of the sale set aside is not barred because time would run only from his discovery of such fraud. For these reasons, this appeal must be allowed with costs and the case remitted to the Lower Court for disposal according to law.
4. I agree.