Brett and Mitra, JJ.
1. The appeal arises out of proceedings taken in execution of a mortgage decree, which had been obtained on the 19th December 1900 by Pokhan Singh and others against the mortgagors and Edal Singh, a puisne mortgagee, who had obtained a decree on his mortgage and had brought to sale and had purchased some of the mortgaged properties. The mortgaged properties were put up for sale en the 19th March 1902, and one of them was purchased by the present appellant. The sale was confirmed and possession was afterwards delivered on the 4th June 1902.
2. On the 21st June 1902 two applications were made to the Court executing the decree by the judgment-debtor, Edal Singh, the respondent in the present appeal. One under Section 108, Civil Procedure Code, was to have the decree set aside, the other under Section 311, Civil Procedure Code, was to have the sale pet aside, In support of both applications, allegations of fraud were made against the decree-holders. The Subordinate Judge dismissed the application under Section 108, Civil Procedure Code, holding that the grounds put forward to support it had not been substantiated. With that application we have no concern in this appeal.
3. The other application although ostensibly under Section 311, Civil Procedure Code, the Subordinate Judge has treated as one falling under Section 244, Civil Procedure Code. In his judgment he points out that the main basis for the application was fraud, and he deals in detail with the various facts and circumstances on which the applicant relied to support his case that there had been fraud on the part of the decree-holder. He found that there had been a fraudulent concealment of the various processes issued by the Court and a complete failure, the result of fraud, to comply with the provisions of Section 290, Civil Procedure Code. He held that the omission to publish a copy of the sale notification in the Court of the Subordinate, Judge executing the decree was manifestly the result of design and not of mistake--the object being to conceal from the present respondent the fact that the property was to be sold. Finding 'therefore that the application before him although it proceeded under Section 811, Civil Procedure Code, and Section 244, Civil Procedure Code, fell under Section 244, Civil Procedure Code, on the ground of fraud and illegality, he held that the application had been brought within time and he set aside the sale on the ground of fraud. He further held that owing to the omission to comply with the provisions of Section 290, Civil Procedure Code, there could have been no sale in compliance with the conditions required by that section, and that the sale on that account was illegal. On that ground also he held that the sale should be set aside.
4. On appeal the District Judge his confirmed the order of the Subordinate Judge, but for different reasons. As the date of the sale was the 19th March, 1902 and the application to have it set side was not made till the 21st June 1902, he has held, and no doubt rightly, that if the application be held to fall under Section 311, Civil Procedure Code, it must be considered to have been barred. Being then of opinion that 'the only question he had to consider was whether the illegality under Section 290, Civil Procedure Code, read with Section 287, Civil Procedure Code, vitiated a sale to which objection could only be taken under Section 244, Civil Procedure Code,' he had that the finding of the Subordinate Judge of fraud was based merely on the omission to comply with the provisions of Section 290, Civil Procedure Code, and he remarked that he was unable to understand how the Subordinate Judge could saddle the decree-holder with fraud on account of the unfortunate error of the Court ordering the sale He held accordingly that there was fraud in the case and that the application must be regarded as falling under Section 311, Civil Procedure Code. Inasmuch, however, as there had been no publication of the notice in the Sub-Judge Court he held that the 30 days' limitation never began to run, and that the application under Section 311, Civil Procedure Code was not barred. Holding the omission to comply with the terms of Section 290, Civil of Section 290, Civil Procedure Code, to be a material irregularity in conducting the sale and further finding that substantial loss had resulted to the judgment-debtor from that irregularity, he confirmed the order of the Subordinate Judge setting aside the sale.
5. Against this order the auction purchaser has appealed to this Court and byway of extra precaution has also made an application under Section 622, Civil Procedure Code.
6. A preliminary objection is raised that no appeal lies, and in support of it reliance is placed on the ruling of this Court in the base of Umakanta Roy v. Dino Nath Sanyal (1900) I.L.R. 28 Calc. 4. It is urged that as the District Judge held that there was no fraud proved and in fact no allegation of fraud made in support of the application, and that therefore it was one falling under Section 311, Civil Procedure Code, and as he treats it as such, there can be no appeal against his order. We are unable to accept this view. Fraud was certainly alleged by the applicant in his application. Distinct facts and circumstances were relied on before the Subordinate Judge, as proving that there was fraud. The Subordinate Judge fully considered these facts and circumstances and held on them that fraud had been proved. On that account he treated the application as one falling under Section 244, Civil Procedure Code, and set the sale aside on account of the fraud in the proceedings which he held to have been proved before him. The appeal was argued at length before the District Judge and there is nothing to show that the allegations of fraud were not supported before him. This case is clearly distinguishable from the case relied on in support of the objection, in which it appears that although an allegation of fraud had been put forward in the application, no attempt had been made in either of the Lower Courts to support it.
7. In our opinion ample authority that an appeal lies in the present case is afforded by the rulings of this Court in Bhubon Mohun Pal v. Nunda Lal Dey (1899) I.L.R. Calc. 324 and Hira Lal Ghose v. Chundra Kanto Ghose (1899) I.L.R. 26 Calc. 539. It has not been contended before us that the appellant as auction-purchaser had no right to appeal, Undoubtedly he had a right as such. We fully agree in the view expressed by the learned Chief Justice in the case last mentioned that to appreciate whether a case is or is not within Section 244, Civil Procedure Code, it is necessary to consider what the application was and whether at the time it was made it was an application under the section. The whole basis on which the application rested was that fraud had been committed and facts and circumstances were relied on to support it. The Subordinate Judge found that fraud had been proved. The District Judge from his judgment does not appear to have fully grasped the view taken by the Subordinate Judge and the mere fact that, owing to a misconception of the case, he held that no question of fraud arose would not deprive the present appellant, who, it may be observed, had to meet the allegations of fraud, from his right to appeal.
8. We hold therefore that a second appeal lies and it is not necessary therefore to consider whether the application to this Court under Section 622, Civil Procedure Code, can stand, as on our finding such, an application is unnecessary.
9. We have now to consider whether the order of the District Judge on appeal can be maintained. We are of opinion that it cannot, and that the appeal must go back to him for rehearing, and for the following reasons. The view which the District Judge has adopted that as the provisions of Section 290, Civil Procedure Code, were not observed, the sale which had been held in execution of the mortgage-decree was in fact no sale, and no limitation could run from the date of that sale is not one which we can accept as correct. In the case of Gobind Lal Roy v. Ram Janam Misser (1893) I.L.R. 21 Calc. 70 : L.R. 20 I.A. 165 their Lordships of the Privy Council say in their judgment. 'In the opinion of their Lordships, a sale is a sale made under Act XI of 1859 within the meaning of that Act, when it is a sale for arrears of Government revenue, held by a Collector or other officer authorized to hold sales under the Act, although it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or conducting the sale or in consequence of some express provisions for exemption having been directly contravened.' The same principle in our
10. Opinion equally applies where the sale has been held in execution, of a decree by a Court duly authorized to hold such sales. In the case of Tasadduk Rasul Khan v. Ahmad Husain (1893) I.L.R. 21 Calc. 66 : L.R. 20 I.A. 176 and another, it has been held by this Court that non-compliance with the provisions of Section 290, Civil Procedure Code, in conducting a sale is a material irregularity within the meaning of Section 311, Civil Procedure Code, but its effect is not to make the sale a nullity without proof of substantial injury thereby to the judgment debtor. We are unable therefore to agree with the District Judge that in this case by reason of the omission to comply with the provisions of Section 290, Civil Procedure Code, limitation cannot be held to have commended to run against the debtor. Limitation must be held to have run from the date of the sale and if therefore the application be found to fall under Section 311, Civil Procedure Code, it is barred. The order of the District Judge is therefore set aside.
11. The District Judge however appears, as we have already noticed, to have not grasped the meaning of the Subordinate Judge's judgement, and to have misconceived his conclusions and the reasons on which they were based. He has in consequence failed to consider at all the case of fraud, which the Subordinate Judge held to have been proved, or to have taken into consideration the facts and circumstances which induced the Subordinate Judge to arrive at his conclusions, or to give any reasons for finding that these conclusions were incorrect. We are unable therefore to deal finally with the appeal, as it comes before us. We accordingly direct that the appeal be sent back, to the District Judge for rehearing and for decision, after taking fully into consideration the question of fraud, which was presented in the Court of the Subordinate Judge and the facts and circumstances on which the Subordinate Judge relied in arriving at the conclusion that the proceedings, in which the sale was held, were vitiated by fraud, and on that account, the sale should be set aside. Costs will abide the result.
12. The application under Section 622, Civil Procedure Code, being unnecessary, it is dismissed.