1. This appeal is by the auction-purchaser. It is directed against an order setting aside a sale. Though the facts are simple difficult questions of law concerning technical matters of procedure have arisen. Prom whatever point of view it is regarded, whether from the angle of Section 47, Civil P.C. or Section 174, Bengal Tenancy Act, it is a borderline case.
2. The first point that arises is whether the appellant has any locus standi to appeal against an order made under Section 47, Civil P.C. in connection with a matter beyond the scope of Section 174(3), Bengal Tenancy Act. If he is to do so, he must come in either as the representative of the decree-holder or the judgment-debtor.
3. In the present case we are concerned only with an application to set aside a sale. The appellant may be the representative either of the decree-holder, the judgment-debtor or neither. By the sale, the auction-purchaser has obtained the right, title and interest of the judgment-debtor. It has been held more than once in this Court that he may represent the judgment-debtor; |but that is of no assistance to the appellant here, because there is absolutely no dispute between him and the decree-holder. He can only intervene now if it can be held that he is the representative of the decree-holder. I have not been shown any decision to that effect in this Court. An auction-purchaser does not obtain his title through the decree-holder and it is difficult to see how he can be his representative. It is perfectly true that in this case, as usual, the auction-purchaser and the decree-holder are allied against the judgment-debtor. But an ally is quite different to a representative. I am, therefore, of opinion that the appellant had no locus standi to intervene in this matter if it comes within Section 47, Civil P.C.
4. The next question for consideration is whether this present matter comes within the terms of that section. On the allegations made in the original petition a case could certainly have been put forward to the effect that the filing of the execution case was in itself a fraudulent act. This would clearly have been a matter within Section 47. But that case was abandoned in the lower appellate Court; in fact after the deposition of the respondent and the abandonment of the suggestion that the processes in connection with the sale had been suppressed, it would have been useless to go on with it. The matter is now narrowed down to what took place immediately before the sale. Briefly, the respondent's case is that, an officer of the decree-holder assured him that he could pay by instalments and that the execution case would be dismissed for default. Relying on that assurance he paid a further sum of Rs. 40 on that very day and did not bother to attend the Court. He was therefore astounded to discover that the property had been sold.
5. In my judgment this is a matter coming directly within Section 174(3), Bengal Tenancy Act. There was no fraud in connection with the execution case itself; the fraud was in connection with the sale and the appellant has accordingly a right to intervene and contest the application. It is therefore necessary to consider whether he has a right of appeal. This depends upon whether the case comes within the explanation to Section 153, Bengal Tenancy Act.
6. That explanation lays down that a question as to the irregularity of the proceedings in publishing or conducting a sale is not a question relating to title to land. There is no specific reference to fraud. The meaning of this explanation was considered at length by Rankin C.J. in Jugal Chandra v. Ramesh Chandra : AIR1930Cal490 . An irregularity in the proceedings may be due to many causes, e.g., fraud, carelessness or laziness on the part of the process server. It has been held in that case that, even though an irregularity may be due to fraud, the case is still within the explanation.
7. The fraud found here, however, is of quite a different character. It is altogether outside the machinery in connection with the holding of the sale. There was no irregularity in connection with the proceedings in publishing or conducting the sale. The fraud was something extraneous thereto and consisted in the failure of the decree-holder to have the : execution case dismissed for default. In these circumstances, it must be held that the present case is outside the explanation with the result that there is a right of appeal. It is therefore necessary to consider the arguments which have been advanced in support of it.
8. The first argument was to the effect that the evidence upon which the learned Subordinate Judge has relied was inadmissible in view of the provisions of Order 21, Rule 2, Civil P.C. This contention must be overruled. The undertaking given by the agent to the decree-holder that the execution case would be dismissed for default was in no sense an adjustment of the decree. Sub-rule (3) merely prohibits the recognition of a payment which has not been certified. The respondent is not asking the Court to give credit for these payments. The evidence of the payments has merely been put in to corroborate the evidence as to the alleged agreement. It was, therefore, admissible and as the learned Subordinate Judge points out the fact that the respondent made payments even after the sale is the strongest possible corroboration of the truth of his story.
9. The only other point argued was limitation. Unless it can be shown that the appellant was a party to the fraud, no extension of time could be allowed against her. The learned Subordinate Judge does not really deal with this question at all. He merely says this:
The fact that the auction-purchasers-opposite parties produced C.S. Khatians and maps from the sherista of the landlord and filed them in the ease goes to show that it is they who are rather in collusion with the landlords.
10. Here 'collusion' is altogether too strong a word to use. Furthermore, the question is not whether the appellant and the decree-holder were in alliance against the judgment-debtor in connection with this application. Of course they were. The question is whether the appellant's husband was a party to the fraud at the time when it was committed. There is no direct evidence at all. The only fact proved is that the mortgagee purchased the property in the name of his wife. This is done by prudent mortgagees every day to protect their own interest. There is nothing suspicious in it and it would be quite wrong to infer fraud from this fact alone. As a result, it must be held that the application against the appellant was barred by limitation.
11. I am informed that I declined to interfere in revision in connection with the finding of the Munsif on a question of suppression of the processes on the ground that the appellant's mortgage was protected. Be that as it may, Mr. Ali in the course of the hearing stated that his client had no desire to take any advantage of the fraudulent conduct of the decree-holder's agent. He was quite willing to allow the respondent to retain the land provided his mortgage dues are paid off. I shall, therefore, defer passing final order until that matter has been settled.
12. The appeal will finally be disposed of as follows : If within two months the Advocate for the judgment-debtor pays Rs. 800 to the Advocate for the appellant, the appeal will be dismissed. The appellant will also be entitled to withdraw the money paid into Court by the judgment-debtor under Section 174, Bengal Tenancy Act. If no such payment is made, the appeal will be allowed, the orders of the Courts below will be set aside and the application by the judgment-debtor dismissed. I make no order for costs.