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K.M. Sheikh Muhammad Rowther Vs. Subba Naicker - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in72Ind.Cas.46
AppellantK.M. Sheikh Muhammad Rowther
RespondentSubba Naicker
Cases Referred and Beeju Bee v. Moorthiya Sahib
Excerpt:
.....procedure, code (act v of 1908), order xxi, rule 90--execution salt--application to set aside sale-fraud--limitation. - - 1. we have considered the evidence and find no reason to disturb the learned subordinate judge's finding that the petitioner was kept in ignorance of the sale of his property which took place on the '25th october 1917, till application was made by the counter-petitioner for possession to be delivered to him in december 1919. 2. the want of resemblance between the signatures on exhibits 1(a) and 1(6) and the petitioner's admitted signatures and the counter-petitioner's failure to explain how the figures of rs. 3. it is argued that fraud anterior or subsequent to the act complained of will not save limitation. in the present case there was a continuing fraud..........disturb the learned subordinate judge's finding that the petitioner was kept in ignorance of the sale of his property which took place on the '25th october 1917, till application was made by the counter-petitioner for possession to be delivered to him in december 1919.2. the want of resemblance between the signatures on exhibits 1(a) and 1(6) and the petitioner's admitted signatures and the counter-petitioner's failure to explain how the figures of rs. 2,500 in exhibit a was arrived at and how certain words came to be struck out and others put in, confirms the conclusion which the rest of the evidence leads to on the question of fraud. this finding does not necessarily involve a finding that the process-servers were parties to the fraud in serving notices on the petitioner.3. it is.....
Judgment:

1. We have considered the evidence and find no reason to disturb the learned Subordinate Judge's finding that the petitioner was kept in ignorance of the sale of his property which took place on the '25th October 1917, till application was made by the counter-petitioner for possession to be delivered to him in December 1919.

2. The want of resemblance between the signatures on Exhibits 1(a) and 1(6) and the petitioner's admitted signatures and the counter-petitioner's failure to explain how the figures of Rs. 2,500 in Exhibit A was arrived at and how certain words came to be struck out and others put in, confirms the conclusion which the rest of the evidence leads to on the question of fraud. This finding does not necessarily involve a finding that the process-servers were parties to the fraud in serving notices on the petitioner.

3. It is argued that fraud anterior or subsequent to the act complained of will not save limitation. In the present case there was a continuing fraud which commenced with the counter-petitioner's failure to serve judgment-debtor with the notice of the intended sale and was kept up after the sale by the execution of Exhibit A. This justifies the application of Section 18 of the limitation Act, the active concealment from petitioner of the knowledge of his right to object to the sale having continued till the fraud first became known to him when an application was made for delivery of the property that was the subject of the sale.

4. The application was thus in time and the circumstances of Pasurmarti Payidanna v. Ganti Lakshminsaraamma 28 M.L.J. 525 and Beeju Bee v. Moorthiya Sahib 11 L.W. 150 : 37 M.L.J. 627 : 26 M.L.T. 419 : 43 M. 214 are distinguishable.

5. The civil miscellaneous appeal fails and is dismissed with costs.


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