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Majaharali and anr. Vs. Mafijaddi Sardar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal706,166Ind.Cas.127
AppellantMajaharali and anr.
RespondentMafijaddi Sardar and anr.
Cases ReferredAmir Hassan Khan v. Sheo Baksh Singh
Excerpt:
- .....auction and purchased by another person, opposite party no. 2, wife of opposite no. 3, and not the decree-holder. after about six months the petitioners applied to set aside the sale on the grounds that sale processes had been fraudulently suppressed by the decree-holder and that by such sale the petitioners had suffered substantial loss. the trial court set aside the sale. in appeal the findings were reversed and the petition was dismissed.2. it is urged in this court that the learned munsif, carefully considered all the evidence on the issue of the service of the sale proclamation. he noticed that the witnesses named in the peon's report were not examined but other persons were brought in to prove the service of the sale proclamation and that a person was brought in who stated that he.....
Judgment:
ORDER

M.C. Ghose, J.

1. In this case the petitioners were mortgagees of certain tenure. Opposite party No. 1, the landlord, instituted a rent suit, got a decree and in execution of that decree put up the tenure to sale. It was sold at auction and purchased by another person, opposite party No. 2, wife of opposite No. 3, and not the decree-holder. After about six months the petitioners applied to set aside the sale on the grounds that sale processes had been fraudulently suppressed by the decree-holder and that by such sale the petitioners had suffered substantial loss. The trial Court set aside the sale. In appeal the findings were reversed and the petition was dismissed.

2. It is urged in this Court that the learned Munsif, carefully considered all the evidence on the issue of the service of the sale proclamation. He noticed that the witnesses named in the peon's report were not examined but other persons were brought in to prove the service of the sale proclamation and that a person was brought in who stated that he had beaten the drum whereas his name was not in the peon's report. The Court of appeal considered that the defect might have been due to the mistakes of the peon. The appellate Court did not believe that the processes had been suppressed. On the matter of the valuation the Munsif found that the value of the property would be Rs. 1,200 as it appeared that this particular property had been sold in 1928 for Rs. 1,300. The Court of appeal below considered that since 1928 there had been fall in prices of staple food-crops; there was correspondingly fall in prices of land and the prices in 1935 could not be as in the year 1928. But that as in his opinion there was no suppression of notices, the question of valuation was not important. On this point the Court of appeal below upon consideration of the evidence has come to its finding and in an application under Section 115, Civil P. C., his findings cannot be attacked on the ground of error in appreciating the evidence. The last point taken is that the Court of appeal below recorded a finding that even if there was a finding of fraud on the part of the decree-holder the petitioner would not succeed against the auction-purchaser who was a third party and against whom there was no allegation of fraud. On this point the case in Kedar Hura v. Asutosh Roy (1927) 44 C L J 565 is quoted. Upon perusal of the judgment and upon consideration of Section 18, Lim. Act, it cannot be said that the Court of appeal below was wrong. Section 18 of the Act runs as follows: Whore any person having a right to institute a suit or make an application, has, by means of fraud, been kept from the knowledge of such right of or the title on which it is founded, the time limited for instituting a suit or making an application (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him otherwise than in good faith and for a valuable consideration shall be computed from the time when the fraud first became known to the person injuriously affected thereby....

3. On a plain reading of the section the extended time can only be claimed against a person guilty of the fraud and against a person accessory thereto and against a person who claims through the person who committed the fraud. From this it would appear that it cannot be claimed against an innocent third party against whom ordinary limitation would apply. In a case under Section 115, Civil P. C., even an error of law is not a sufficient ground for interference by the High Court. See the case in Amir Hassan Khan v. Sheo Baksh Singh (1885) 11 Cal 6. The Rule is discharged with costs, hearing fee being assessed at one gold mohur.


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