1. This Rule by the auction-purchaser arises out of an appln under Section 174 (3), Bengal Tenancy Act, for setting aside a Ct sale on the usual ground of fraud & material irregularity in publishing & conducting the sale resulting in gross inadequacy of price fetched by the sale. The appln was dismissed by the trial Ct which found in favour of the auction-purchaser upon all the material points. Against that decision an appeal was preferred by the judgment-debtor & in appeal the learned Subordinate Judge has reversed the decision of the trial Ct holding inter alia that the sale was brought about by fraud & material irregularity & that the price fetched by the sale was grossly inadequate.
2. The impugned sale was held on 15-5-1946 & the present appln for setting aside the sale was filed on 23-6-1948. Apparenty, therefore, the appln was time-barred but limitation was sought to be saved by invoking the aid of Section 18, Limitation Act.
3. Various points have been canvassed before me. The point upon which considerable stress was laid on the side of the auction-purchaser was regarding the competency of the lower appellate Ct. The point arises in this way: The appeal was filed before the lower appellate Ct on 6-6-1949. On that day, however, the deposit required under Section 174 (5), Bengal Tenancy Act, was not made. That deposit was made on 16-5-1950. Under Sub-clause (5), no appeal shall be admitted unless the applt deposits such amount in Ct. It is contended by Mr. Janah on behalf of the auction-purchaser that as in the present case the necessary deposit was made long after the admission of the appeal, the appeal was incompetent. Prima facie, this is a valid argument. This objection was raised in the lower appellate Ct as well & that Ct came to the conclusion that in view of all the circumstances of the case it was abundantly clear that there was a bona fide mistake & as such in a case like this the time should be extended upto the time of actual deposit in order to do justice between the parties. I can well understand in the circumstances of the present case the contention that the omission to make the deposit earlier than 16-5-1950 was due to a bona fide mistake but the point is whether the Ct is competent in the circumstances to extend the time. The first order by the lower appellate Ct in this appeal dated 6-6-1949 runs thus. 'Register Admit Applt to file requisite process & process fee by 8-6-1949'. I have looked into the order-sheet & it seems to me that the word 'admit' was written by the learned Judge himself. If that be so, that preliminary order passed on 6-6-1949 was clearly a judicial order & not a mere ministerial act. Even assuming that the word 'admit' was not written by the learned Judge himself, the whole order as it stands amounts, in my opinion, to a judicial order for which the 'responsibility was that of the learned Judge himself. As the order stands, I cannot construe it to mean that the order was passed by the learned Judge without applying his judicial mind. It might be that at that time it escaped the notice of all the parties concerned including the learned Judge himself that the necessary deposit was wanting in the case but that is no reason why there should be any abrogation from the clear terms of the statute. In these circumstances, I am inclined to think that the appeal was incompetent, the necessary deposit having been made long after, that is, on 16-5-1950. It was contended on behalf of the judgment debtor that as the mistake was a purely bona fide one it could be condoned by giving the judgment-debtor applt the benefit of Section 5, Limitation Act. As regards this contention, Section 29, Limitation Act, read with Section 184, Bengal Tenancy Act, stands in the way as Section 5, Limitation Act, is not specifically mentioned in Section 29, Limitation Act, & that being so there is no scope for the appln of Section 5, Limitation Act, in the present case. The order of the lower appellate Ct setting aside the sale is thus liable to be set aside on this ground alone.
4. On the merits of the case as well, I may make certain observations. The learned Subordinate Judge has come to the conclusion that there was material irregularity on account of non-service of sale proclamation which in all probability was wilfully suppressed. Again, the learned Judge observes 'the probability remains that there was a wilful suppression of the sale proclamation with some fraudulent purpose'. Now, these observations in my opinion do not amount to a finding about wilful suppression of the sale proclamation, which was necessary for the purpose of setting aside the sale. It may be observed incidentally that the trial Ct was of a different opinion on this point.
5. Then again, there is another point which calls for some comment In view of the decision in the case of 'Mihirlal v. Panchkari', : AIR1950Cal520 , before the judgment-debtor could be allowed to have the advantage of Section 18, Limitation Act, it was necessary for her to prove that this auction-purchaser was a party to or at least accessory to the fraud which accompanied the sale. There is no definite finding of the lower appellate Ct on this point. There are no doubt, certain observations in the judgment of the lower appellate Ct that the auction-purchaser's husband acted fraudulently & comment was pertinently made on the fact, that he himself did not choose to come into the witness box. In coming to this conclusion, the learned Judge was apparently influenced by the fact that there was no denial of the allegation that the auction purchaser's husband was a karmachari of the landlords. On this point, however, there is no positive evidence on the record & that being so the finding about fraud on the part of the auction-purchaser's husband was arrived at partially upon considerations which are not supported by evidence. It is not necessary for me in this revision to go into the details of the evidence. It is to be observed however that the trial Ct came to conclusions directly contrary to those arrived at by the lower appellate Ct on various aspects of the case. In this connection some comment may be made regarding the attempt of the lower appellate Ct to whittle down the effect of the damaging admission made by the appct herself in her examination-in-chief to the effect that she had filed an appln for setting aside the sale previously. It is the case of the auction purchaser that that appln was made by herself & her husband as far back as 2-7-1946. It was the case of the judgment debtor that she was not aware of any such appln & a hand-writing expert was examined in order to prove some alleged forgeries in this connection. It was also alleged by her that she was on bad terms with her husband. The trial Ct observed that there was absolutely no truth in that allegation & that as a matter of fact her husband was doing everything for her. The trial Ct recorded the evidence & watched the demeanour of the witness & it is quite apparent from the judgment of the trial Ct that the learned Munsif was under the impression that the judgment-debtor appct understood what she was deposing about when she made the admission about the previous appln having been filed by her. There is no allegation in the evidence that she did not understand what she was deposing about. In these circumstances, the lower appellate Ct was not, in my opinion, justified in trying to explain away the clear testimony of the appct in the manner that he has done. It is unnecessary for me to go into the details of the evidence further. I cannot help observing however that it is difficult to believe when there were so many sale-set-aside cases that neither the appct herself nor her husband had any previous knowledge of the sale.
6. In these circumstances, I am unable to uphold the order of the lower appellate Ct. The Rule is accordingly made absolute with costs. The order of the lower appellate Ct is set aside & that of the trial Ct is restored.