1. This is an appeal from an order under Order 21, Rule 90 of the Code of Civil Procedure refusing to set aside a sale in execution of a decree for mortgage. The sale took place as early as 23-4-56 and the present petition under Order 21, Rule 90 of the Code was filed on 28-1-61. Evidently the petitioner did not come within the period oflimitation but could have come if the petitioner could make out a case under Section 18 of the Limitation Act of 1908 and so far as that is concerned the case was in the petition as follows :--
'That no summons was served upon you petitioner in the mortgage suit and indeed your petitioner was kept in the dark about all proceedings until as stated before he received a notice in the Misc. Case No. 68 of 1959 of this Court ......'
2. The trial court heard the petition under Order 21, Rule 90 C. P. C. Oral and documentary evidence was adduced by both parties. The trial court came to the finding that opposite party No. 1 namely the decree-holder, knew from before the sale on 23-4-54 that the suit premises comprised of two-storeyed building. We find from evidence on record Ext. 2 which would show that the premises in question was a two-storeyed building and the decree-holder knew that even though he described the building as one storeyed building and the result was that the property was sold at a gross under-valuation; the trial court finds that the property was sold at a gross-under valuation. The court found that the processes were not fraudulently suppressed and they were not suppressed at all. The result, therefore, must be that the court found that the application was barred by limitation and the court did find that the petition was hopelessly barred by limitation under Article 166 of the Limitation Act and therefore the application failed.
3. On this finding and on the state of evidence as it is on the record Mr. Sen Gupta has not urged that the petitioner was entitled to the benefit of Section 18 of the Limitation Act. But Mr. Sen Gupta urged that the decree-holder committed fraud upon the court. The fraud was that the decree-holder knew that the property was a two-storeyed one. Having known it to be two-storeyed property he described it in the sale proclamation under Order 21, Rule 66 to be one-storeyed building and gave valuation consistent with such description. This the decree-holder did with knowledge and for a purpose and therefore the decree-holder committed fraud upon the court. But the trial court has found that the decree-holder knew about it and further found that there was a gross under valuation. Therefore. Mr. Sen Gupta urges that there was fraud committed upon the court by the decree-holder in suppressing the true state of affairs, namely that the property was two-storeyed and giving a false value of the property to the knowledge of the decree-holders. He, therefore, says as that fraud was known to the court, the court had the duty to remedy that fraud. Mr. Sen Gupta refers to a decision reported in Marudanayagam Pilliai v. Manickavasakam Chattiar . The Judicial Committee held as follows:
'It the respondent knew the true facts; if he purchased at what he knew was too low a figure based on an upset price accepted by the court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud on the court, as the learned Subordinate Judge points out. The court not have allowed the respondent purchasing at a court sale to take advantage of his own fraud, whatever the conduct of the appellant might have been.'
Therefore delay or no delay the court would interfere, not because the petitioner has been able to prove a case under Section 18 of the Limitation Act but because a fraud had been committed upon the court and the court has later on detected that fraud and it would, therefore, be the duty of the court to give the relief to the party who has suffered because of such fraud upon the court.
4. It is contended by Mr. Dutt that this point was not urged in the court below and therefore should not be allowed to be raised. We do not think that this is a point which cannot be raised at all in this court because the materials on record are sufficient for any necessary finding on the point urged and further there are findings of the court on the relevant point. It has been the accepted rule so far as the law of pleading is concerned that if aparty makes a case which he fails to prove in its entirety, but still if he is entitled to relief on what he has been able to prove, he would get such relief as may be allowed to him in the circumstances. The petitioner came to the court with a case that because of the fraud he was prevented from his right to file an application. He has succeeded in proving that there was fraud but he has failed to prove that he was kept out of his knowledge of his right to sue for setting aside the application. Therefore, the pleading is wide enough to include the point made out by Mr. Sen Gupta and we, therefore, overrule the argument of Mr. Dutt. But the other point that Mr. Dutt urges seems to us to be of substance. Mr. Dutt says that he should be allowed to plead waiver. The records of the case are here and there is nothing to show that opposite party Nikhil Ranjan Guha Thakurta whose property the house in question was, never filed any petition under Order 21, Rule 90. He never applied for setting aside the sale in any way even if fraud had been practised upon the Court; the party who would be entitled to relief because of that fraud has chosen not to apply for any relief. In other words, that party has waived his right. If that party has waived his right, the question is how far the present appellant is affected. The present appellant is not the owner of the property. He will not get the property if the sale is set aside. The only thing that the present appellant will get if the sale is set aside is that he may in future be relieved from the liability under the personal decree but the decree-holders have now given an undertaking to us that they would not proceed with the execution of the personal decree.
5. Having, therefore, considered all aspects of the matter we pass the following order:
In case the decree holders file an application in the proceeding for the execution of the connected personal decree (Title Execution Case No. 63 of 1959 of the 6th Court of the Subordinate Judge Alipore) saying that the said execution case be dismissed and saying further that they would not execute the decree in future, the present appeal will stand dismissed and the application for setting aside the sale will stand rejected and the order of the court below will stand affirmed. If the petitioner does not give an undertaking within two months from the date they would not execute the personal decree and further if within that period no steps are taken to have the execution of the said decree dismissed, the appeal will stand allowed, the sale will stand set aside and the judgment of the court below will stand set aside. The two cross-objections are not pressed and they are accordingly dismissed.
6. In any event each party will bear his own costs in both the courts.
7. The appellant petitioner has depositedcertain sums with the Registrar of this Courtin C. R. No. 93 (M) of 1964. The appellantwill be at liberty to withdraw that sum.