1. This is an appeal on behalf of the judgment-debtor against an order refusing to set aside an execution sale. In the Court of first instance, the validity of the sale was substantially challenged on two grounds; first, that the sale had been brought about by fraud and also vitiated by material irregularity; and, secondly, that the holding was non-transferable, and consequently could not be sold in execution of the decree obtained by the respondent. The Court of first instance decided both these points in favour of the judgment-debtors and set aside the sale. Upon appeal, the learned Subordinate Judge has reversed that order on the ground that the sale was not brought about by fraud, and, as fraud has not been established, the application was barred by limitation. His view apparently is that as the sale took place on the 21st March 1906 and as the application to set aside the sale was not presented till the 7th August 1907, the application is barred by limitation. In this view, he has thought it unnecessary to consider the other point in the case and has ordered the sale to be confirmed.
2. The judgment debtors have now appealed to this Court, and on their behalf, it has been contended that the view taken by the Subordinate Judge is erroneous because in so far as the sale was sought to be set aside on the ground that the holding was not transferable, the application was one made under Section 244 of the Code of 1882, and consequently it might have been presented within three years from the date of sale. In our opinion, this contention is well-founded and masts prevail. The learned Vakil for the respondent has not disputed this position. But he has invited our attention to the case of Durga Charan Mandal v. Kali Prasanno Sarkar 26 C. 727 : 3 C.W.N. 586, in which it appears to have been ruled that before a judgment-debtor can ask for reversal of an execution sale on the ground that the holding was not saleable, it has to be proved that he was not aware of the order for sale, because if he was aware of the order he ought to have prevented the sale by an objection taken at the proper time. There is considerable force in this contention.
3. The result, therefore, is that this appeal must be allowed, and the order of the Subordinate Judge in so far as he declined to decide questions other than the question of fraud, must be discharged. The case will be remitted to him in order that he may consider the question of the transfer-ability of the holding. But before he sets aside the sale on the ground that the holding was not transferable, he must consider whether in view of the decision just mentioned, it is open to the judgment-debtor to apply to have the sale set aside. His finding in so far as he held that the sale was not brought about by fraud will stand. If the Subordinate Judge considers it necessary to take additional evidence to elucidate any point, he will be at liberty to take it in accordance with law. Costs of this appeal will abide the result. We assess the hearing fee at two gold mohurs.