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Gobind Chandra Majumdar Vs. Uma Charan Sen and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal679
AppellantGobind Chandra Majumdar
RespondentUma Charan Sen and anr.
Excerpt:
civil procedure code (act xiv of 1882), sections 311, 312 - sale in execution, application to set aside--limitation act (xv of 1887), section 18, and schedule ii, article 166--fraud. - .....of the court to confirm, as it did confirm, the sale under section 312 of the procedure code. the present application was not made until some time after, and therefore it would be barred under article 166 of the limitation act already referred to. but then it is contended by baboo guru dass banerjee that, under section 18 of the limitation act, his client is entitled as a matter of right to an extension of time, because the main ground of the application was, and is, that the decree under which the sale took place and all the proceedings taken in execution of that decree are fraudulent, and that his client is, therefore, entitled to thirty days from the time when he, for the first time, became aware of a fraud having been practised upon him. it appears to us that this contention cannot.....
Judgment:

W. Comer Petheram and Ghose, JJ.

1. This appeal arises out of an application made by the appellant before us on the 22nd of December, 1886, under the provisions of Section 311 of the Code of Civil Procedure, to set aside a sale which had been held on the 21st of September 1886. This sale was confirmed on the 20th November, 1886, and the application that was made to the lower Court to set it aside has been refused upon the ground that it is barred by limitation under Article 166 of the second schedule of the Limitation Act. It appears to us that the view taken of the matter by the lower Court is right. The sale in question having taken place on the 21st September 1886, it was open to the judgment-debtor to apply to the Court to set it aside upon the grounds mentioned in Section 311 within thirty days from the date of the sale, that being the period prescribed by Article 166 of the second schedule of the Limitation Act. If such an application had been made within thirty days it would have been the bounden duty of the Court to entertain it, and to determine whether or no there were sufficient grounds within the meaning of Section 311 to set aside the sale. But no such application was made; and it became the duty of the Court to confirm, as it did confirm, the sale under Section 312 of the Procedure Code. The present application was not made until some time after, and therefore it would be barred under Article 166 of the Limitation Act already referred to. But then it is contended by Baboo Guru Dass Banerjee that, under Section 18 of the Limitation Act, his client is entitled as a matter of right to an extension of time, because the main ground of the application was, and is, that the decree under which the sale took place and all the proceedings taken in execution of that decree are fraudulent, and that his client is, therefore, entitled to thirty days from the time when he, for the first time, became aware of a fraud having been practised upon him. It appears to us that this contention cannot be maintained. Section 18 of the Limitation Act, so far as it bears upon this case, could not be invoked in favour of the applicant after the sale had been confirmed. If, before the sale was confirmed, an application had been made, although after thirty days from the date of the sale, the Court would possibly be justified in granting the application and extending the period of limitation if sufficient cause under Section 18 of the Limitation Act were made out. But, as I have already said, the sale was confirmed under Section 312 on the 20th November, 1886, no application having been made to set it aside ; and it, therefore, appears to us that no application could be entertained under Section 311 of the Code, If the sale was really a fraudulent sale it is open to the judgment-debtor to bring a suit to set it aside upon the ground of fraud; but we are not concerned with that matter on the present occasion. All that we have to consider is whether the application that was made to set aside the sale under Section 311 is within time; and we are of opinion that it is not. We are informed that an application has been made by the decree-holder to set aside the decree itself upon the ground of fraud, and that the said application has been allowed, but that the order passed in that matter is now the subject of an appeal to a higher Court. If it be found that the decree has been fraudulently obtained, the decree-holder in the present case being the purchaser at the sale, there will be no difficulty in the way of the present applicant getting back his property; but, perhaps, it is not necessary in this case for us to express any opinion upon the subject.

2. The appeal will be dismissed. We make no order as to costs.


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