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Abha Munshi Vs. Kamu Molla - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in48Ind.Cas.970
AppellantAbha Munshi
RespondentKamu Molla
Excerpt:
limitation act (ix of 1908), section 18, schedule i, article 166 - civil procedure code (act v of 1908), order xxi, rule 90--execution of decree--sale--application to set aside sale made more than thirty days after date of sale--applicability of section 18--finding, necessary. - .....could bring himself within the provisions of section 18 of the indian limitation act. the learned judge considered that he had brought himself within the purview of section 18 of the limitation act. whether he has or has not, it is not for us to say. but on the facts found, it is quite clear that the judge was not entitled to come to the conclusion he has, because he has not found when the opposite party came to hear of the sale and unless he finds as a fact when the opposite party came to know of the sale, he cannot find whether the case comes within the provisions of section 18 of the limitation act or not. the case cannot stand on the findings of fact that have been made by the learned district judge, we must, therefore, set aside the judgment of the learned judge of the.....
Judgment:

Fletcher, J.

1. This Rule was issued at the instance of the petitioner, who is a purchaser at a sale in execution of a rent decree held on the 27th November 1916, calling on the opposite party to show cause why the order of the learned Additional District Judge should not be set aside. The case is a perfectly simple one. As I have already stated, the present petitioner purchased in execution of a rent decree on the 27th November 1916, The opposite party claims l/3rd of the property to which the present application relates as being the purchaser at a sale in execution of a mortgage decree. The present case is this: On the 2nd April 1917, the opposite party made an application to the Court under the provisions of Order XXI, Rule 90, Code of Civil Procedure, to set aside the rent sale on the ground of material irregularity and fraud. It is quite clear that that application Gould not be heard, because the period for making such an application was thirty days from the date of the sale, unless the applicant could bring himself within the provisions of Section 18 of the Indian Limitation Act. The learned Judge considered that he had brought himself within the purview of Section 18 of the Limitation Act. Whether he has or has not, it is not for us to say. But on the facts found, it is quite clear that the Judge was not entitled to come to the conclusion he has, because he has not found when the opposite party came to hear of the sale and unless he finds as a fact when the opposite party came to know of the sale, he cannot find whether the case comes within the provisions of Section 18 of the Limitation Act or not. The case cannot stand on the findings of fact that have been made by the learned District Judge, We must, therefore, set aside the judgment of the learned Judge of the lower Appellate Court and remit the case to him to re-hear it and to come to a proper finding on the facts in order to determine the matter that was pending before him. We make no order as to the costs of this Rule.

Walmsley, J.

2. I agree.


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