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Nakul Chandra Dutta Vs. Ajit Kumar Chakrabarty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2130 of 1980
Judge
Reported inAIR1982Cal564,1982(2)CHN54,86CWN866
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 66 and 90; ;Limitation Act, 1963 - Section 17
AppellantNakul Chandra Dutta
RespondentAjit Kumar Chakrabarty and ors.
Appellant AdvocateB.C. Dutt, ;Maloy Kumar Bose and ;Nanda Dulal Nayek, Advs.
Respondent AdvocateSaki Nath Mukherjee and ;Pradipto Roy, Advs. (for No. 1) and ;Bimal Jyotsna Chatterjee, Adv. (for No. 3)
DispositionRevision dismissed
Cases ReferredMarudanayagum v. Manicka
Excerpt:
- b.c. chakrabarti, j.1. this rule was issued at the instance of the petitioner/ decree-holder and is directed against an appellate order passed in misc. appeal no. 62 of 1979 reversing the order of the trial court it misc. case no. 48 of 1976 arising out of in application under order 21, rule 90 of the civil p.c. the application under order 21, rule 90 of the code was filed by the opposite party no. 1 on 22-9-1976 for setting aside a sale held on 1-7-1968.2. the facts leading to the filing of the application under order 21, rule 90 of the civil p.c. may be briefly stated thus.3. one gopal chandra chakraborty was the owner of 3 1/2 cottahs of land with a three storeyed building standing thereon, being premises no. 372/5, russa road south, subsequently renumbered as 3, deshpran sashmal road,.....
Judgment:

B.C. Chakrabarti, J.

1. This Rule was issued at the instance of the petitioner/ decree-holder and is directed against an appellate Order passed in Misc. Appeal No. 62 of 1979 reversing the order of the trial Court it Misc. Case No. 48 of 1976 arising out of in application under Order 21, Rule 90 of the Civil P.C. The application under Order 21, Rule 90 of the Code was filed by the opposite party No. 1 on 22-9-1976 for setting aside a sale held on 1-7-1968.

2. The facts leading to the filing of the application under Order 21, Rule 90 of the Civil P.C. may be briefly stated thus.

3. One Gopal Chandra Chakraborty was the owner of 3 1/2 cottahs of land with a three storeyed building standing thereon, being premises No. 372/5, Russa Road South, subsequently renumbered as 3, Deshpran Sashmal Road, Gopal Chandra obtained a loan of Rs. 30,000/- from Metropolitan Insurance Company Limited. The decree-holder Nakul Chandra Dutta instituted Suit No. 459 of 1952 against opposite party No. 3 Panchanan Chakraborty for recovery of a loan of Rs. 6,000/- with interest in the original side of this Court and obtained a decree for Rs. 9,000/- inclusive of interest. Gopal Chandra, father of Panchanan was impleaded as a co-defendant in this suit and as such was a co-judgment-debtor. Metropolitan Insurance Company Limited instituted Title Suit No. 79 of 1953 in the 3rd Court of the learned Subordinate Judge at Alipore for recovery of the principal sum of Rs. 30,000/-together with interest and obtained a decree on 7-5-1953 for Rs. 39,165.34. Gopal Chandra Chakrabarty died in 1955 leaving behind his widow and 3 sons, opposite parties 1, 2 and 3. In 1960 Nakul Chandra got the decree passed by the High Court in his favour transferred to the 3rd Court of the learned Subordinate Judge, Alipore for execution and Money Execution Case No. 38 of I960 was started. Life Insurance Corporation which had taken over the business of Metropolitan Insurance Company after nationalisation, started Title Execution Case No. 23 of 1960 in the same 3rd Court of the learned Subordinate Judge. In this Execution Case No. 23 of 1960, the widow and sons of Gopal Chakraborty deposited Rs. 30,000/-. In the execution case at the instance of Nakul Chandra Dutta, the property namely, No. 3, Deshapran Sashmal Road was attached and put to sale by auction. In the sale that followed Nakul Chandra Dutta, the decree-holder purchased the property for Rs. 9,000/-and odd on 1-7-1968. The widow of Gopal Chandra acting through Panchanan filed an application for setting aside the same on 29-7-1968 claiming that the property was worth Rs, 1,50,000/-. The application, however, was dismissed for default on 19-8-1972. The sale in favour of Nakul was confirmed on 4-12-1972. It is significant, however, that such confirmation was obtained only when the opposite party No. 1 Ajit Kumar Chakraborty (who had filed the application under Order 21, Rule 90 of the Code) one of the sons of Gopal Chandra had started Title Suit No. 71 of 1972 for partition of the self-same property, namely, No. 3, Deshapran Sashmal Road. This suit was contested by his mother and his brother Panchanan who in their defence denied plaintiff's title but did not disclose the auction sale already held. The suit was eventually decreed in a preliminary form on 20-2-1974. The appeal filed by the mother and Panchanand against the preliminary decree for partition being Title Appeal No. 503 of 1974 was dismissed on 13-2-1975. Though the sale was confirmed in 1972, the auction-purchaser took no steps for taking delivery of possession until 1974. He took out the sale certificate in March, 1974 and applied for delivery of possession under Order 21, Rule 95 on 20-6-1974. Faked possession was taken when opposite parties 2 and 3 along with their mother continued to remain in possession and shortly thereafter when Panchanan's appeal against the partition decree failed in July 1976 he purchased the disputed property from the decree-holder Nakul for a sum of Rs. 25,000/-. The opposite party No. 1 Ajit Kumar Chakraborty thereupon filed an application under Order 21, Rule 90 of the Code for setting aside the auction sale held on 1-7-1968 which was registered as Misc. Case No. 48 of 1976. In this application Ajit claimed that he had not been duly served with the processes in the execution case, that he had no knowledge of the execution case or of the sale that took place and that he came to know of the sale long thereafter in August 1976, when he was informed by a tenant of the disputed premises that Nakul had sold it to Panchanan and that the tenant had been asked to attorn and that the property was sold at a shockingly low value. The application under Order 21, Rule 90 of the Code was contested by Nakul and Panchanan.

4. The learned subordinate Judge did not accept the contention that the processes had not been properly served or that there was any irregularity in publishing and conducting the sale. He did not agree that the price fetched at the sale was shockingly low. He also found that the petitioner before him, namely, Ajit had failed to make out any case of fraud or fraudulent concealment so as to ask for extension of limitation. In that view of the matter, the learned Subordinate Judge dismissed the misc. case on contest. Being aggrieved, the opposite party No. 1 Ajit Kumar Chakraborty preferred an appeal. The learned appellate Judge substantially affirmed the findings arrived at by the learned Subordinate Judge but found upon a consideration of the materials on record that the failure of the Court in not mentioning in the sale proclamation the value put by the judgment-debtor was a material irregularity and that the petitioner had by reason of such irregularity sustained substantial injury. In that view of the matter, the appeal was allowed with the result that the execution sale was set aside.

5. The decree-holder Nakul Chandra Dutta has thereupon preferred the present revisional application on 25-6-1980. In September 1980, Ajit Kumar Chakraborty obtained a Rule against Nakul Chandra Dutta and others restraining them from demolishing any portion of the disputed premises or causing any damage thereto and changing the nature and character of any portion of the property and also from letting out the same to others till the disposal of C.R. No. 2130 of 1980, namely, the present revisional application.

6. Mr. Dutt appearing in support of the revisional application contended that there was no irregularity in publishing and conducting the sale, that the application for setting aside the sale filed nearly 8 years after the sale cannot be entertained, that the petitioner Ajit has failed to make out any case of fraud in the matter of publishing and conducling the sale so as to invoke extension of limitation with the aid of Section 17 of the Limitation Act. He also argued that the price fetched at the sale could not be said to be shockingly low and that has not been the finding of either of the Courts below.

7. Mr. Mukherjee appearing to oppose the revisional application on the other hand argued that the processes in the execution case had been deliberately suppressed and/or not properly served so that the petitioner Ajit had no knowledge of the execution case or of the sale that followed. He also complained that the decree-holder Nakul Chandra Dutta had joined hands with Ajit's brother Panchanan and they together actively contrived to keep the petitioner Ajit in the dark in regard to the sale. It is also his contention that Panchanan caused, the property to be sold for a song in execution of a decree against himself and then entered into an unfair deal with the decree-holder and purchased the property for Rs. 25,000/- only so as to deprive the petitioner Ajit and hit other brother with a view to grab the property entirely to his own benefit. According to Mr. Mukherji the fact that Panchanar allowed the earlier application for setting aside the sale to go by default and the auction-purchaser obtained a faked delivery of possession allowing Panchanan to remain in possession clearly indicate that as between the auction purchaser and Panchanan there was a clear understanding to effect a fraudulent sale solely with the object of depriving the other co-sharers of their share in the property. It was also contended by Mr. Mukherji that the value of the property was not less than Rs. 1,50,000/- on the date of sale and that the sale of the property for a sum of Rs. 9,000/- and odd only was certainly a sale at a shockingly low valuation. This, it was argued amounted to fraud on the Court and, as such, admitted of no bat of limitation.

8. It is clear from the recital of facts that the application for setting aside the sale was filed more than 8 years after the sale actually took place. The material question for our consideration, therefore, is whether the petitioner Ajit had knowledge of the execution proceedings and whether he was kept out from such knowledge by reason of fraud practised by the decree-holder. If fraud is proved the applicant is entitled to the benefit of Section 17, that is to say, the period of limitation in that case would run from the date when the fraud first became known to the applicant. The initial onus is on the applicant to show that he had no knowledge of the same until within 30 days of the application. This onus, the applicant, namely, Ajit tried to discharge by referring to certain facts, namely, that he was not served with the processes in the execution case, that there was positive and deliberate misstatement in the execution case as also in the sale proclamation regarding the value of the property, that the value was many times more than what was actually shown in the sale proclamation, that the value suggested by one of the judgment-debtors in an application filed in the Court was not put in the sale proclamation in compliance with the provisions of Order 21, Rule 66 of the Code, that the sale had been adjourned from time to time without service of fresh sale proclamation and without any indication that fresh sale proclamation had been waived by the judgment-debtors and that throughout there was positive endeavour between the auction-purchaser and Panchanan to suppress the factum of sale from the opposite parties 1 and 2. On the first point, it appears upon a reference to Ext. 1 that the notice under Order 21, Rule 22 of the Code was served upon Panchanan alone. The process-server's report indicates that except Panchanan none of the judgment-debtors were found and that Panchanan received notice after putting his signature on the return. Ext. 1 no doubt shows that Panchanan had been duly served but it does not appear that he had so received the notice on behalf of all the judgment-debtors. That the acceptance of the notice by Panchanan alone cannot be treated as sufficient, would be evident from the subsequent conduct of Panchanan which we shall have occasion to refer to later on. It also appears that in the execution case Panchanan alone entered appearance by filing a Vakalatnama. We see no reason why the other judgment-debtors whose property was intended to be sold in execution of the decree would not appear if they were properly served. The fact that Panchanan was acting in collusion and in collaboration with the decree-holder would be evident from his conduct in the partition suit filed by the applicant, Ajit. That suit was contested by Panchanan. Panchanan has been examined as witness No. 2 for the opposite party in the misc. case. He has stated in his cross-examination that at the time when he filed the written statement in the partition suit he knew that Nakul Dutta bad purchased the property in auction-sale and that he or for the matter of that his brothers had no subsisting interest therein. Yet this fact was not disclosed in the written statement and Panchanan has frankly confessed that he could not say why the fact was not so disclosed. We can, therefore, take it that even at that time Ajit had no knowledge of the execution sale. Mr. Dutt, however, drew out attention to two letters Exhibits A and A/1, both dated 30-3-1976 and contended that they indicate that at least at that time Ajit had knowledge of the execution sale. These letters were written by the applicant Ajit and there is a reference therein to some hearsay that Panchanan with the aid of his brother-in-law had purchased the house or is trying to do so. It is also stated that Panchanan and his brother-in-law had previously tried to misappropriate a considerable sum of money by forging the signatures of the applicant and his elder brother. It is also complained in the letters that those two persons of late are moving too frequently to Court. Mr. Dutt contends that the knowledge of the applicant about the sale of the property is attributable to the applicant at least with reference to these two letters. We are, however, unable to accept the contention. The letters at most indicate some hearsay knowledge about an intended purchase by Panchanan, There is nothing in these letters to suggest that the applicant had any knowledge of any Court sale. In the case of an application to set aside a sale on the ground of fraud, under Order 21, Rule 90 of the Code limitation runs not from the date when the applicant has some hearsay knowledge of the factum of sale, but when he has a clear and definite knowledge of the facts constituting the fraud (See Bhusan Mani v. Prafulla (1921) ILR 48 Ca) 119 ; (AIR 1921 Cal 251)).

9. The evidence of the applicant is that after the appeal in the partition suit filed by him had been dismissed while he was contemplating filing an application for appointment of a Commissioner he came to learn from one of the tenants in the suit house, Sri R.K. Mehera, that the latter had received a notice from an advocate engaged by Nakul Chandra Dutta intimating that the house was sold to Panchanan and that arrears of rent, if any, should be paid to Panchanan. It is also his evidence that this put him into enquiry whereupon be learnt about the execution sale to Nakul Chandra Dutta and the subsequent sale by Nakul to Panchanan. The letters received by the tenant R.K. Mehera and those written by him have been exhibited. They substantially support the case of the applicant.

10. Mr. Mukherji also drew our attention to the fact that in the execution petition as also in the sale proclamation Ext. 7, the value of the property is shown as Rupees 36,000/- with a remark that it is subject to the balance of mortgage dues of Rs. 26,000/-approximately in Title Execution Case No. 23 of 1960. It is complained by Mr. Mukherji that not only the valuation was under-stated, the encumbrance, namely, the balance of mortgage dues to the tune of Rs. 26,000/- was a deliberate misstatement. We have already indicated that the total dues of the Life Insurance Corporation for which the execution case was filed was Rs. 39,000/-and odd out of which Rs. 30,000/- had been paid. This sum was admittedly paid from out of the compensation received by the applicant and his co-sharers on account of certain land acquisition proceedings. Therefore, there could not have been such outstanding balance as stated in the execution petition. This was obviously done with a motive, namely, to scare away possible buyers.

11. Then again the valuation of Rupees 36,000/- as shown in the sale proclamation was definitely an under-valuation even according to Panchanan and his mother Prafulla Bala, since deceased. Prafulla Bala had earlier filed an application for setting aside the sale in which she claimed the valuation of the property to be about Rs. 1,50,000/-. Panchanan also filed an application (Ext. 4) in May 1961, claiming that the value of the property was Rs. 1,50,000/- or so.

12. We get some indication as to the nature of the property from the evidence on record. The land comprised is 3 1/2 cottahs. The building standing thereon is a three storeyed building. Panchanan in his cross-examination concedes that the house is close to the lakes intervened by one or two houses and the railway line. He could not deny the suggestion that the value of the house at the time of the auction sale was about Rs. 2,50,000/- or so. He has admitted that the house stands on the main road and the area is connected with about 10 bus routes besides the tram line. It is, therefore, clear that it is situated in a rather important residential area. It is common knowledge that with the partition of the country and the influx of refugees from erstwhile East Pakistan the value of lands and buildings in and around Calcutta has been steadily rising. The fact is so patent and notorious that we can legitimately take judicial notice of it. We are unable to accept that Rs. 36,000- was a proper value of the building in dispute. We further find that even according to Panchanan as far back as in 1961, value was about Rs. 1,50,000/-. It must have gone further up in 1968, when the sale took place. It is also significant to note that in the sale proclamation this value was not put. In the result valuable property was said for a song and the co-sharers other than Panchanan suffered substantial injury.

13. Mr. Dutt appearing in support of the revisional application argued upon a reference to the case of Dhirendra Nath v. Sudhir, : [1964]6SCR1001 that where a judgment debtor refrains from attending at the drawing up of the proclamation and does not object to the non-compliance with Section 35 of the Bengal Money Lender's Act, and where no substantial injury is caused to the judgment-debtor, the sale is not liable to be set aside under Order 21, Rule 90. In this case, however, it appears that the judgment-debtor had entered appearance and filed an objection but did not attend at the drawing up of the sale proclamation. In the case before us, we have found that the judgment-debtors were not all duly served and that one of them, namely, Panchanan had at one stage pleaded that the property was under-valued.

14. Mr. Dutt next referred to the case ofRadheshyam v. Shyam Behari, : [1971]1SCR783 and argued that in order to set aside asale mere proof of a material irregularitysuch as the one under Rule 69 and inadequacyof price is not enough. What has to beestablished is that there was not only inadequacy of price but that inadequacywas caused by reason of the material irregularity or fraud. A connection betweenthe inadequacy and the material irregularityhas to be established. In this case, thelower Court's view that the applicant hadbeen prejudiced as the sale realised was onlyRs. 8.000/- although the value of the appellant's share was Rs. 20,000/-. This estimatewas made by an Amin appointed by theCourt without giving any opportunity to therespondent to be heard and the report of theAmin was filed in the Court below withoutnotice to the respondent. In these circumstances, it was held that the report could notbe relied upon and that inadequacy of priceand material irregularity had not been established.

15. Mr. Dutt then referred to the case of Narayan Sahoo v. Mohant Damodar Das, (1912) 16 Cal WN 894 and argued that misstatement of value, even if it can be described as fraud does not constitute fraudulent concealment and would not by itself bring the case under Section 18 of the Limitation Act (now Section 17) unless it is shown that the judgment-debtor by means of fraud has been kept from the knowledge of his right.

16. Reference was also made to the case of Mujibar Rahman v. Raha Bux, : AIR1954Cal604 and Mihirlal v. Panchkari, : AIR1950Cal520 . In these cases, it has been held that mere under-statement in the valuation of sale proclamation does not amount to such fraudulent concealment as would bring the case within the scope of Section 18 of the Limitation Act, It was further observed that before any extension of time can be granted in an application for setting aside a sale it must be proved that the auction-purchaser -- a person not claiming through the decree-holder -- was either guilty of fraud or accessory to the fraud that prevented the judgment-debtor from knowing of the sale. It is significant that in the case before us the auction-purchaser is none other than the decree-holder. And he was the lone bidder at the sale. Mr. Dutt also referred to the case of New Birbhum Coal Company Limited v. Surendra Nath, (1933) 37 Cal WN 1054: (AIR 1934 Cal 205). This decision lays down that although the value set forth in the sale proclamation may have been grossly low and the sale, as a result thereof may have been for a price which caused substantial injury to the judgment-debtor, still if the latter having had knowledge of the under-valuation did not appear at the settlement of price, he cannot afterwards have the sale set aside on the ground of such under-valuation. What happened in this case was that the judgment-debtors were proved to have known of the under-valuation years before the actual sale while they stood by and took various other objections. It was only after the sale was effected that they made a grievance of the under-valuation and it was held that in such circumstances the judgment-debtors could not be permitted to take a stand that they had suffered by reason of under-valuation.

17. Finally Mr. Dutt referred to the case of Kayjay Industries v. Asnew Drums, : [1974]3SCR678 to show that mere inadequacy of price cannot demolish every Court sale. The facts of this case, however, were different. There the properties to be sold comprised lands, buildings, factory, plant and machinery of the judgment-debtor. The auction was adjourned on many occasions to secure a better and fairer price. At one stage the bid went up to Rs. 11,10,000. The decree-holder got the properties valued by a private valuer whose estimate of the value was above Rs. 17,00,000/-. The auction sale held thereafter fetched the highest offer of a little less than Rs. 11,00,000. The Court persuaded the buyer to raise the offer to a gross sum of Rs. 11,50,000/- and the Court approved the sale at that price. It was proved that there was no material irregularity in publishing or conducting the sale. Every effort was made to have the property sold to the highest offerer. Well-known industrialists in the public and private sectors knew about the sale and turned up. Yet offers reached a stationary level. In such circumstances, it was held that it could not be said that the executing Court committed any material irregularity in the conduct of the sale in accepting the highest offer.

18. Relying on these authorities Mr. Dutt contended that at the most it could be said that the property was sold at some undervalue and that no case of fraud or irregularity in publishing or conducting the sale could be established. It was also contended that unless fraud is established the application for setting aside the sale filed so many years after the actual sale could not be allowed in view of the bar of limitation provided by the Limitation Act and that outside the limited discretion conferred by the Act in certain cases the Court has no general discretion to relieve a suitor from the operations of its provisions -- the statute of limitations being statute of repose. (See) : [1950]1SCR852 : (AIR 1935 PC 85)).

19. In the instant case the facts proved indicate that the process had not been duly served on all the judgment-debtors. The applicant judgment-debtor was not served. It is also proved that the sale proclamation contained a deliberate misstatement as to the value of the encumbrance. It is further proved that the valuation put by the decree-holder in the sale proclamation was shockingly low. The value could not be Rupees 36,000/- considering the extent of the property and its locational advantages. Even according to the estimate of one of the judgment-debtors the value was in the vicinity of Rs. 1,50,000/- in 1961. We have accepted the evidence of the applicant that he had no knowledge of the execution sale prior to the date claimed by him. The decree-holder or for the matter or that Panchanan who has subsequently purchased the property from the decree-holder for a paltry sum of Rs. 25,000/- only could not show that the applicant had knowledge at an earlier date. From the conduct of the decree-holder Nakul Chandra Dutta and Panchanan Chakraborty it can be easily inferred that they were acting in concert to defraud the other co-sharers. When the circumstances are such that fraud may be presumed as in this case, the burden is on the defendant who sets up limitation to show that the applicant had clear knowledge of the facts constituting the fraud at a time which is too remote to allow him to bring the action.

20. In fee case of Marudanayagam v. Manicka Vasakam, AIR 1945 PC 67 it has been held that where the low valuation of the property to be sold in the sale proclamation was based on a misstatement by the decree-holder as to the amount due under a prior encumbrance and the sale took place at a serious under-value due to the failure on the part of the decree-holder and the Court to carry out their obligations under Rule 68, the judgment-debtor must be taken to have sustained substantial injury. It was further held that if the decree-holder knew the true value of the property but deliberately under-valued it and himself purchased the property at what he knew was too low a figure based on an upset price accepted by the Court owing to his own initial misrepresentation, his conduct would amount to fraud on the Court and he would not be allowed to take advantage of his own fraud whatever the conduct of the judgment-debtor might have been. This decision of the Judicial Committee has ever since been considered as a ruling authority on the subject. It has been followed in many cases where the Court found the decree-holder to be guilty of non-compliance with the provisions of Rule 66 of Order 21 of the Code and of deliberately putting a low value which is shocking to the conscience, (see P.C. Mukherji v. P. Mukherjee, (1967) 71 Cal WN 649, Sisir Kumar Mukherji v. Kanhaiyalal, : AIR1971Cal87 , Pankaj Kumar Pakhira v. Nanibala, ILR (1968) 1 Cal 43; Manmatha Nath v. Sacbindra Kumar, : AIR1956Cal59 .

21. Apart from the shockingly low value put in the sale proclamation it is apparent that the provisions of Rule 66 of Order 21 have not been duly observed. Rule 66 requires the proclamation of sale to contain and specify as fairly and accurately as possible, the property to be sold, any encumbrance to which the property is liable, the amount for the recovery of which the sale is ordered and every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property. Sub-rule (4) says that for the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters. In this case before us the Court acted mechanically in publishing the sale proclamation with the particulars as furnished by the decree-holder. It did not satisfy itself as to whether the particulars were fair and accurate. It is true that in most cases the Court has no means of checking the information supplied but nevertheless the Court ought, as far as possible to bring its mind to bear upon the contents of the application. The power conferred upon the Court by Sub-rule (4) for the purpose of ascertaining the matters to be specified in the sale proclamation shows that the Court is not intended to act blindly on information supplied by the parties (See AIR 1945 PC 67 (supra); Gajadhar Prasad v. Babu Bhakta Ratan, : [1974]1SCR372 . In this case the Court could gather some information upon a reference to the records of Title Execution Case No. 23 of 1960 of his own Court. A look into the same would have at once revealed that the judgment-debtor of that case valued the property at more than Rs. 2,00,000/-.

22. We are satisfied that the Court had failed to look into these matters.

23. Mr. Mukherji also complained that there was violation of the provisions of Rule 69 of Order 21. That Rule enables the Court in its discretion to adjourn any sale to a specified day and hour and that when a sale is adjourned for a longer period than 7 days, a fresh proclamation under Rule 67 shall be made unless the judgment-debtor consents to waive it. In the instant case there were several adjournments for a period longer than 7 days and there was no fresh sale proclamation. It appears, however, that Panchanan bad on all such occasions waived service of fresh sale proclamation. We have already indicated that the records show that Panchanan alone was served and that he alone entered appearance in the execution case. Therefore, the waiver by Panchanan could bind Panchanan but not the other judgment-debtors who had not waived fresh sale proclamation. Mr. Dutt, however, in this context referred to the case of Radheshyam v. Shyambehari : [1971]1SCR783 (supra) to contend that mere proof of an irregularity such as non-compliance of Rule 69 is not enough to entitle a judgment-debtor to have the sale set aside. It has already been indicated that the facts of that case were different. This part had the applicant's case rested on this irregularity alone it might possibly be contended that this was not a material irregularity in publishing and conducting the sale but this irregularity taken in conjunction with the other irregularities such as failure to furnish the particulars required under Rule 66 and the deliberate act of under-valuation so far as the property is concerned, and misstatement so far as the value of encumbrance is concerned, gives a totally different complexion to the case. They together show and establish fraud on the Court and also the attempt to fraudulently conceal the relevant facts from the judgment-debtor applicant. Such being the position and since we have found that there is nothing to indicate that the applicant had clear knowledge of the facts constituting the fraud at a time which is too remote, the applicant is entitled to invoke Section 17 of the Limitation Act for the purpose of extending the period of limitation (See Venkanna v. Venkanna), : AIR1950Mad509 . Though the findings of the learned Judges of the Courts below in regard to service and knowledge of sale were against the applicant we must accept the contention of Mr. Mukherji that such findings were not arrived at on actual consideration of the material documents and evidence on record. Hence Mr. Mukherji is entitled to support the order made by the appeal Court in favour of the applicant by successfully assailing such findings. Alternatively, we must uphold the view of the Court of appeal below that in this case the sale having been effected on a fraudulent under-valuation, there was fraud on the Court resulting in substantial injury to some of the co-sharers-judgment-debtors and the decree-holder himself having purchased in such a sale, he cannot take advantage of his own wrong. Such a sale is liable to be set aside by the Court irrespective of the question of limitation as held by the Privy Council in the case of Marudanayagum v. Manicka (AIR 1945 PC 67) (supra) and the line of decisions of this Court based on the above decision of the Privy Council referred to hereinbefore.

24. Hence upon a consideration of all the materials we are satisfied that the applicant Ajit Chakraborty has succeeded in making out a good case for setting aside the sale. The decree-holder or for the matter of that the subsequent purchaser Panchanan has failed to establish any circumstance to entitle them to invoke the bar of limitation particularly when the facts proved establish a clear case of fraud on the Court. In that view of the matter, the order impugned in this revisional application, namely, the appellate order passed in Misc. Appeal No, 62 of 1979 is not required to be interfered with.

25. The revisional application accordingly fails and is hereby dismissed. The Rule is discharged.

26. The connected application giving rise to C.R. No. 3315 of 1980 arising out of an application by Ajit Chakraborty, the applicant under Order 21, Rule 90 of the Code for injunction is allowed and the Rule is made absolute. There will be no order for costs. Let the records be sent down forthwith.

Anil K. Sen, J.

27. I agree.


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