1. This rule was issued to show cause why an order passed Under Section 174 (3), Ben. Ten. Act, should not be set aside.
2. The material facts are as follows. The landlord instituted a suit for assessment of rent; and for recovery of rent and obtained a decree. In execution of that decree, the holding was put to sale on 21st May 1942. The sale was confirmed in the ordinary way on 22nd June 1942. On 3rd July 1942, the auction-purchaser took out the sale certificate and, according to the record, obtained delivery of possession through Court on 2nd March 1943. On 12th June 1943 one of the tenant judgment-debtors filed two applications before the Court. One was an application under Order 9, Rule 13 and the other was an application Under Section 174(3), Ben. Ten. Act. In these applications he asserted that he had been kept out of knowledge both of the decree and the sale and he had come to know of both of them on 3rd June 1943, The application under Order 9, Rule 13 was dismissed on 30th November 1943 and no appeal against the order of dismissal was preferred. The application Under Section 174 (8), Ben. Ten. Act was dismissed by the Court of first instance on 21st February 1944. The learned Munsif found that processes had not been suppressed, that the property had not been sold at an inadequate price, that the auction-purchaser was benamdar of one of the judgment-debtors and that the application was barred by limitation.
3. The applicant appealed to the Subordinate Judge. His application was allowed, the Subordinate Judge finding that processes 'were suppressed and that there was fraud on the part of the decree-holder, The learned Judge accordingly set aside the sale on certain conditions, The auction purchaser has moved this Court.
4. On behalf of the auction-purchaser it has been argued first, that the learned Judge was wrong in his decision that processes had been suppressed and secondly, that the learned Judge had not considered the question of limitation.
5. With regard to the first of these points the evidence of service of processes was evidence that the concise statement was sent by registered post. Some of them were served by the judgment-debtors and seven were returned with the endorsement 'refused.' It has been argued that there is a presumption from this endorsement that the notices were tendered to the judgment-debtors and that until that presumption is rebutted the Court ought to hold that there had been proper service. It was argued further that in the present case there was no evidence to rebut the presumption and that therefore the learned Judge was wrong in his finding and acted irregularly in the exercise of his jurisdiction in coming to this wrong finding. Reliance was placed on the case in Haripada Dutta v. Joy Gopal ('35) 39 C.W.N. 934. The facts of the case relied on were very exceptional and entirely different from the present case. There can be no doubt, however, in view of that 'ruling that where notices are sent by registered post and returned with the endorsement 'refused' the Courts are entitled to presume that they were tendered. In this particular case the person to whom they were stated to have been tendered denies that they were tendered to him. The learned Subordinate Judge held that the denial in the circumstances of the present case was sufficient to rebut that presumption and I am not prepared to hold that he was not right in doing so or that he was not competent to consider the circumstances and this refusal as sufficient to rebut the presumption. In this view I am not competent to question the finding that processes were in fact suppressed.
6. This leads us to the question whether the learned Subordinate Judge did or did not consider the question of limitation and whether in considering the question of limitation, if he did so, he acted with material irregularity in the exercise of his jurisdiction. As stated above the sale took place on 2lst May 1942. The application Under Section 174(3), Ben. Ten. Act was made on 12th June 1943, more than a year after the date of sale. Therefore prima facie it was barred by limitation. The learned Munsif held that in fact it was barred by limitation. It has been argued before me by the petitioner that the learned Subordinate Judge did Act consider the question of limitation, but he confined himself to considering whether fraud had been committed by the decree-holder and having held that there was a fraud by the decree-holder, sit aside the sale without considering the question of limitation. I am rot satisfied that that is what foe learned Subordinate Judge has done. In my opinion the learned Subordinate Judge has in fact considered the question of limitation, though his discussion of the matter is not free from obscurity. It has been argued however that even if he has considered the question of limitation, he has not applied the law on the subject correctly and my attention was drawn to Section 18, Limitation Act. For the petitioner if was argued that fraud on the part of the decree-holder would not serve to extend the period of limitation Under Section 18, Limitation Act in an application to set aside a sale, unless if were shown that the auction-purchaser was the person guilty of the fraud or was accessory thereto. I agree entirely with this point of view. I am satisfied that in order to succeed in an application Under Section 174(3), Ben. Ten. Act, if the application is made outside the period of limitation prescribed by law, the applicant must show that the auction-purchaser was himself guilty of the fraud which kept the applicant from the knowledge of his right to make the application or was accessory thereto.
7. The question is whether the learned Subordinate Judge has approached the question of limitation from this point of view. It is true that in his judgment the learned Subordinate Judge contended himself with saying.
in this view of the matter I find that a fraud was committed by the decree-holder in bringing about the sale of the lands and that sale cannot stand.
This does suggest that the learned Subordinate Judge considered that it was sufficient to show that the decree-holder had been guilty of fraud. But the whole of the discussion in the judgment is a discussion of the conduct of the judgment-debtor on whose behalf the auction-purchaser made the purchase. The learned Judge considered the circumstance that some of the postal notices were received and some were returned 'refused' and the learned Judge came to the conclusion that it was probable that some judgment debtor had informed the postal peon that the other judgment-debtors refused to receive and acknowledge the notices. The learned Subordinate Judge then went on to point out that one of the judgment-debtors took an active part against the applicant who sought to set aside the sale. He again pointed out that the same judgment-debtor had gone to great lengths to secure the property either for himself or for his sister. It seems to me that the learned Judge was of opinion that the judgment-debtor in question, Nakul, was himself a party to the fraud committed by the decree-holder and was therefore in the words of Section 18 'accessory to the fraud.' The auction purchaser is, in the view of both the Courts below, merely a benamdar of the judgment-debtor, Nakul.
8. It seems to me that the findings of the Subordinate Judge really indicate that the Subordinate Judge was of opinion that 'the auction-purchaser was accessory to the fraud. If this is the right interpretation of the judgment of the learned Subordinate Judge, the applicant Under Section 174, Ben. Ten. Act was entitled to an extension of the time by virtue of Section 18, Limitation Act. In these circumstances it does not seem to me that this is a fit case in which I should interfere.
9. The rule is accordingly discharged with costs, hearing fee one gold mohur.