1. Appeal from the order of the Additional Subordinate Judge of Cocanada in Appeal No. 17 (a) of 1922 in C.M.P. No. 1390 of 1921 of the Court of the District Munsif of Ramachandrapur.
2. Petitioner applied to set aside the sale of property sold under the decree in O.S. No. 554 of 1912 of the Cocanada District Munsif's Court. So far as his share is concerned, the lower Courts allowed the application. Counter-petitioner appeals.
3. The petitioner had been exonerated from the decree, but nevertheless his property was sold and there must admittedly be restitution unless his application can be shown to be time-barred. The sale was in 1915 and the application in 1921. There can be no doubt in the light of Rajagopala Aiyar v. Ramamijarhariar I.L.R. (1923) M 288 : 46 MLJ 104. that Article 181 of the Limitation Act applies and petitioner will be time-barred unless he has pleaded and established facts which save him from the bar. I agree with the appellant that he cannot set up a new case in appeal but the point for determination is whether that was actually done, and whether a case under Section 18, Indian Limitation Act, has been established. In the 5th paragraph of his petition, the petitioner sets forth that in spite of the compromise which exonerated him from the decree, the counter-petitioner fraudulently proceeded against the entire property without serving notice on the petitioner. As notice was thus fraudulently suppressed the petitioner only came to know of the sale in August, 1921. This contains all that is necessary to attract the provisions of Section 18, Indian Limitation Act, to petitioner's case, and I cannot hold it to be a fatal Haw that he has not specifically referred to this section. The counter-petitioner then contends that even supposing there was fraudulent suppression of notice at the time of the sale, no subsequent fraud is alleged and therefore petitioner was not fraudulently kept out of knowledge of the sale. This point was taken in the lower appellate Court and I agree with the learned Subordinate Judge that there was a continuing fraud up to the date of petitioner's knowledge. The case cited by appellant, Payidanna v. Lakshminarasamma I.L.R. (1914) M 1076 hardly helps him. There at the time of the sale, a minor was treated as major, a circumstance which did not exactly keep the minor from knowledge of the sale.
4. Accordingly I see no reason to differ from the finding of the lower Courts, but appellant asks that the order may apply to the share of the 2nd defendant only, that of 1st defendant having been validly sold. There seems to be no objection to this modification, and I order accordingly.
5. Costs to 2nd defendant.