Skip to content


Surja Kanta Das Vs. Jogendra Nath Dutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal381,137Ind.Cas.378
AppellantSurja Kanta Das
RespondentJogendra Nath Dutta
Excerpt:
- .....although the said application was made in point of fact beyond oven six years from the date of the sale the application was in time. the sale took place on 22nd february 1923 and the application was made on 6th april 1929. this view on the question of limitation is not correct. nonservice of the notice under order 21, rule 22, civil p.c., no doubt makes the sale a nullity, but if the sale has to be set aside, and if an application has to be made under order 21, rule 90, civil p. c, for that purpose, it must be made within 30 days from the date, of the sale; and if. it is to be treated as one under section 47, civil p. c, the allegation being that there was no service of notice under order 21, rule 22, it must be made within three years from the date of the sale. of course the time may be.....
Judgment:

1. The Courts below in this case have proceeded on the view that there was no period of limitation prescribed for a case of this nature. What has happened is that the said Courts have found on an application which the respondents made for setting aside an auction sale, that notices under Order 21, Rule 22 of the Code, had boon suppressed, but that although the said application was made in point of fact beyond oven six years from the date of the sale the application was in time. The sale took place on 22nd February 1923 and the application was made on 6th April 1929. This view on the question of limitation is not correct. Nonservice of the notice under Order 21, Rule 22, Civil P.C., no doubt makes the sale a nullity, but if the sale has to be set aside, and if an application has to be made under Order 21, Rule 90, Civil P. C, for that purpose, it must be made within 30 days from the date, of the sale; and if. it is to be treated as one under Section 47, Civil P. C, the allegation being that there was no service of notice under Order 21, Rule 22, it must be made within three years from the date of the sale. Of course the time may be extended if circumstances which would attract the operation of Section 18, Lira. Act, are proved by the party who applies for such an extension. But the question has not been considered by any of the Courts below from this point of view. The respondent' allegation was that they had come to know of the sale in Chaitra 1335 B.S. If that allegation be true, and if it be found that want of knowledge on the part of the respondents is attributable to some fraud on the part of the appellants so as to bring the case within Section 18, Lim. Act, then the respondents of course are within time in making the application. But this question has not been considered by any of the Courts below.

2. In our opinion the order which the Court below has passed ought to be set aside and the case should be sent back to the said Court in order that the question of limitation may be properly determined. The findings of fact arrived at by the Courts below as regards nonservice of the notice under Order 21, Rule 22, will not be allowed to be reopened. The appeal is thus allowed and the case is remitted to the Court of the District Judge to be dealt with in accordance with the directions given above. We make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //