1. This appeal is by defendant 2. He is the purchaser of two properties which, were sold in execution of two certificates. He made the purchase from defendant 1 who was the actual auction-purchaser. The plaintiffs are the original owners of the property. Their case is really extremely simple. They alleged that defendant 1 who was managing their property colluded with all the peons and suppressed every single process in connexion with the certificates. On this allegation they prayed firstly that the sales might be set aside, and, secondly, that in the alternative defendant 2 should be ordered to re-convey the. properties to them on proper terms. The Munsif dismissed the suit. Far from finding any evidence of fraud he was satisfied that the processes were all served. The plain-tiffs then appealed. The learned District Judge set aside the decree of the Munsif, made a decree setting aside the sales and directing that the plaintiffs should be put into khas possession of the properties. Defendant 2 now appeals to this Court. The first contention made by Mr. Bose on behalf of the appellant is that the suit as under Section 36 of the Public Demands Recovery Act is barred by limitation. The suit was instituted more than a year after the delivery of possession and it is plain enough that the plaintiffs cannot get relief of any sort unless they establish their case of fraud.
2. In support of this contention two grounds were urged. In the first place it is said that proviso (a) to Section 36 lays down not a rule of limitation but a condition precedent. In our opinion it is a rule of limitation. In the second place it was contended that the learned Judge when he found that limitation was saved by Section 18, Limitation Act, did not proceed to consider all the provisions of that Section. The learned Judge's finding is based upon the allegation of fraud committed by defendant 1. This defendant is neither the certificate-holder nor the certificate-debtor. Under the provisions of the Section itself time is only extended against defendant 1 and not against defendant 2 and defendant 3. Mr. Gupta pointed out that defendant 3 averred that he had no objection to the sales being set aside as long as his own interests were protected. In our opinion, the attitude adopted by defendant 3 at the trial has nothing to do with the application of Section 18. The fraud alleged against defendant 1 would not give any extension of time against the certificate-holder. In this view of the case we must hold that the relief under Section 36 of the Act is barred and the learned Judge was not justified in setting aside the sales. There remains the question of the alternative relief which the learned Judge held that he would have granted to the plaintiffs. In order to establish this right, the plaintiffs must prove the fraud alleged in the plaint. The learned Judge found that the notices under Section 7 of the Act were not served. This would be quite sufficient to entitle the plaintiffs to pray for relief under Section 36 of the Act. But it is clearly not enough to establish fraud. He further found that he was not satisfied that the notices under Rule 46 were actually served. Apart from that he came to a general finding in these terms : 'There was fraud of Daiba in the conception and in suppression of all the processes under circumstances as found above.'
3. I have already pointed out that the case made by the plaintiffs is really a very simple one. But, unfortunately, the learned Judge has introduced so much confusion into the matter that it is far from easy to ascertain what he really thought about the only point at issue. For example, he entered into a long discussion and attempted to establish that the certificates did not amount to rent decrees but to money decrees and in so doing considered whether the certificate debtor really represented all the tenants. I need hardly say that on such a case no question of setting aside the sales could arise. The only question would be whether the interest of the plaintiffs passed by the sale. No such case was ever made by the plaintiffs and that part of the judgment is entirely irrelevant. It is only fair to state that neither of the advocates who appeared in this appeal attached the slightest importance to it. Then again the learned Judge allowed himself to be influenced by various trivialities such as a mistake in the touzi number, matters which could not possibly throw any light on the question whether the fraud alleged had been established. Now it is perfectly true that the sentence which I have just quoted does amount to a finding of fraud. It is the only passage, in this lengthy judgment which does. But in one respect it goes too far and in another respect it does not go far enough.
4. It goes too far because it implies that the sales were due to default conceived by defendant 1. No such case was even suggested by the plaintiffs. It does not go far enough because it does not amount to a finding that defendant 1 colluded with the peons and suppressed all the processes. It has therefore been necessary for us to examine the actual findings of fact in order to see whether they justify an inference of this fraud. These facts may be summarized as follows:
(1) Notices under Section 7 were not served. (2) It has not been proved that notice under Rule 46 was served. (3) Defendant 1 was the actual manager of the plaintiffs' affairs. (4) Defendant 1 was present when the peon, defence witness 2, attached some cattle in execution of distress warrants issued for the realization of the demands of these two certificates and four others. As nothing was paid, cattle were attached and made over to the President of the Union Board as custodian. It is clear from this finding that the peon, defence witness 2 was acting perfectly straightforwardly and carrying out his duty properly. We do not pretend to know how this can amount to evidence that defendant 1 conspired with some other peon on an earlier occasion to suppress the notices under Section 7. This piece of evidence obviously supports the genuineness of the proceedings rather than the alleged fraud. (5) The property was purchased in execution of the certificates by defendant 1. As he himself had a mortgage his action is explained and it would be quite wrong to infer fraud therefrom.
5. In our opinion, these findings are not sufficient to justify an inference of fraud at all. Another difficulty in the way of supporting the decree of the lower Appellate Court is that the learned Munsif found that one of the plaintiffs was actually present at 4he auction. That finding has not been reversed and unless it is reversed it is almost impossible to find fraud. In the second place, even if we are to assume that these circumstances could establish fraud of some kind, they certainly do not establish the particular fraud alleged in the plaint. The learned Munsif dealt with the matter very clearly. He refers to the incident of the attachment of the cattle. I have already pointed out that that is no evidence of fraud. He then goes on to say: 'There is no other evidence to connect defendant 1 with the certificate or other processes.' The learned District Judge has not pointed out that the learned Munsif was in error here nor has he referred us to any such evidence. Unless there is such evidence the learned Munsiff is right in saying that there is no evidence of fraud as alleged by the plaintiffs and the plaintiffs' suit cannot succeed.
6. We have been through the evidence and we are satisfied that the learned Munsif is correct, the only evidence connecting defendant 1 with the processes is with regard to the incident when defence witness 2 was executing not the process in connexion with the alleged fraud but a distress warrant. He did his duty openly and honestly and when no money was paid he attached some cattle and made them over to the President of the Union Board. It is obvious that the conduct of the process-server in connexion with the distress warrant is no evidence to prove collusion between defendant 1 and other process-servers in connexion with other processes.
7. As there is no evidence to connect defendant 1 with the service of any of these processes the view of the learned Munsif is correct and there is nothing to support the case of fraud made in the plaint. We are not prepared to allow the plaintiffs now to make a new case based upon a different consideration and different allegation. The appeal is accordingly allowed. The decree of the lower Appellate Court is set aside and that of the Munsif restored with costs in all the Courts. Dr. Basak has pressed for costs. He cannot support the decree of the lower Appellate Court for costs to be paid to his client by the heirs of defendant 1. He asks that the plaintiffs should be made to pay them. The only allegation made against the trust is to be found in paras 3 and 6 in the grounds of appeal. They were both entirely inconsistent with the pleadings and could hardly be taken seriously. They were not pressed. On the whole we think that the proper order to make is that defendant 3 should pay his own costs in this Court and the lower Appellate Court.
Latifur Rahman, J.
8. I agree.