P.B. Mukharji, J.
1. In this matter, a second appeal had been filed which has since been dismissed as being incompetent. The present application under Section 115 of the Code of Civil Procedure now remains to be disposed of.
2. The application arises out of an order setting aside an auction sale held by the Court on the ground of fraud in suppressing the process and summons of the Court in respect of the sale held. It has been found by both the Courts as a fact that there were material irregularity and fraud in publishing and conducting the sale. That finding of fact, supported both by oral and documentary evidence on record, cannot now be questioned in this application.
3. The only point argued by Mr. Lala Hemanta Kumar for the petitioner is that the lower appellate Court was wrong in not holding that the application to set aside the sale was barred by limitation under Section 18 of the Limitation Act. His main argument on Section 18 of the Limitation Act follows from the following language used in that section :--
' 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 or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application-
(a) against the person guilty of the fraud or(sic)
(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document when he first had the means of producing it or compelling its production '.
4. Lala Hemanta Kumar's argument is that his client the petitioner is a bona fide auction-purchaser for valuable consideration and he is not the person guilty of fraud or accessory thereto within the meaning of the words used in the above section. His only support is the broken reed of the Division Bench decision in Mihirlal v. Panchkari Santra, reported in 54 Cal WN 637 corresponding to : AIR1950Cal520 .
5. That decision has been overruled by a Special Bench decision of this Court in Kamal Kumar Nag Chaudhury v. Parbati Charan Kundu reported in : AIR1961Cal81 (SB). It is held there that the auction-purchaser is not a necessary party to the making of an application for setting aside a sale though he is undoubtedly a person to whom notice of the proceeding must be given before an order is made on the proceedings, because the proviso to Order 21 Rule 92 (2) of the Code of Civil Procedure expressly provides as follows :--
' Provided that no order shall be made unless notice of the application has been given to all persons affected thereby '.
An auction-purchaser is certainly a person 'affected' in an application to set aside the very sale at which he has purchased the property.
6. Looking at the matter a little more closely it appears to me clear that Order 21, Rule 90 of the Code of Civil Procedure deals with an application to set aside a sale on the ground of material irregularity or fraud in publishing or conducting the sale. In other words, the material irregularity or fraud must be in respect of publishing or conducting the sale. In publishing and conducting the sale, it is the decree-holder who has usually the carnage of proceedings; it is the decree-holder who moves the court for publishing or conducting the sale by the court and through the agency and machinery of the court. Therefore, the obviously essential and formal party to such an application is the decree-holder under Order 21, Rule 90 of the Code of Civil Procedure because it is the decree-holder having the carriage of the proceeding who would usually be responsible for the material irregularity or fraud in publishing or conducting the sale. The Court acts on the materials and facts supplied by him--no doubt corrected by the judgment-debtor. The proviso to Order 21, Rule 92 (2) of the Code of Civil Procedure ensures that no order setting aside the sale should be made without giving notice to the party affected by such order. Naturally the auction-purchaser is a person vitally affected by setting aside of the sale Therefore, notice has to be given to him(sic)Giving notice to the auction-purchaser does not however, necessarily mean that the application is actually made against him. All that it means is that no order on the application can be made against the decree-holder under Order 21 Rule 90 setting aside the sale without giving notice to the auction-purchaser. The principle behind this law is clear. The auction-purchaser is vitally interested and he should not lose the fruits of his purchase at the Court sale without being given an opportunity to be heard on the point.
7. Lala Hemanta Kumar has emphasised the bona fide character of the auction-purchaser who may not be aware of the material irregularity or fraud practised or engineered by the decree-holder in publishing and conducting the sale through the machinery of the court, but then the point is that under the law of the Civil Procedure Code an auction-purchaser purchases a property subject to his title being defeated by an application to set aside the sale on the ground of material irregularity or fraud as provided in that law. That risk is always there for a bona fide auction-purchaser in a court sale. The holiest and the most bona fide purchaser a t the auction-sale for value may, nevertheless, under this Rule find that he has not purchased a valid title or property which he can retain. The proviso to Order 21, Rule 92 (2) of the Code of Civil Procedure makes him really an invitee in these proceedings to ensure that no order will be made against him without his receiving an opportunity from the court to be heard on the point.
8. This view of the legal position of an auction-purchaser is eminently justified on principle. The Court cannot accept this position that while it can hold a sale to be bad on the ground of material irregularity or fraud in publishing and conducting the sale, it should nevertheless allow the auction-purchaser to retain the benefit of that fraud. It is not enough for the court penalising the decree-holder because the decree-holder cannot return the property which has already been sold. The law therefore, steps in to ensure complete justice An auction-purchaser in such circumstances is not allowed to be beneficiary of a fraud or material irregularity and cannot be allowed to retain that benefit of fraud or material irregularity even though he did not participate in the material irregularity or in the fraud.
9. The interpretation of Section 18 of the Limitation Act has already been given by the Special Bench which I have noticed. It also appears to me that there is another good reason which can be used to support that decision, Section 18 of the Limitation Act says, 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, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application shall be computed from the time when the fraud first became known to the(sic)case of the concealed document, when he first had the means of producing it or compelling its production. In stating the effect of Section 18 of the Limitation Act in that way I have purposely omitted reciting the portions in Clauses (a) and (b). The purpose is that without the Clauses (a) and (b) the section makes goods sense as above and I, therefore, read the Clauses (a) and (b) in that view as illustrative of persons against whom applications are made or suits Instituted rather than exhaustive. To come to any other interpretation would be to hold that a person can be allowed to retain the benefit of fraud or material irregularity, a conclusion which no court will, unless compelled, accept.
10. I, therefore, hold that the application to set aside the sale was not barred by limitation under Section 18 of the Limitation Act against the auction-purchaser.
11. For these reasons, this application is dismissed. There will be no order as to costs.