1. Civil Revision Cases 1219, & 1330 to 1332 of 1948 are directed against a decision of the Additional Judge of Alipore arising out of proceedings commenced under Order 21, Rule 90 Civil P. C. The Rules were heard together. The relevant facts are as follows:
2. The Corporation of Calcutta brought a charge suit (Title Suit No. 291 of 1940) in respect of premises No. 12, Samsul Huda Road, against six brothers including Mahammad Hossain, Samsul Huq & Jiaul Huq on 19-6-1941. The suit was decreed in a preliminary form & on 2-2-1942 the decree was made final. On 26-7-1942, an execution proceeding (Title Execution Case No. 67 of 1942) was started. The property was sold by auction in execution of the decree on 20-1-1943 & purchased by Manmatha Nath Mukherji for a sum of Rs. 9000/-. It appears that on 26-4-1943, Mahammad Hossain applied for setting aside the sale. A similar application was made by Samsul Huq & another 'judgment debtor on 20-12-1943. Both these applications which were under Order ,21, Rule 90, Civil P. C. were fought upto this Court but the applications were dismissed; Thereafter, Jiaul Huq another J. D. filed the present application on 24-9-1945 under Order 21, Rule 90 for setting aside the sale alleging inter alia that he came to know of the sale for the first time on 26-8-1945, It was alleged that there was suppression of the material processes in connection with the sale, that the property in question was grossly undervalued & that the resultant sale fetched a very inadequate price. It was further alleged that due to fraud the applicant Jiaul Huq came to know of the sale only on 26-8-1945 & not before & as such he was entitled to the benefit of Section 18, Limitation Act. The application was contested both by the D. H., namely, the Corporation of Calcutta & the auction purchaser Manmatha Mukherjee.
3. The trial court upheld the contention of the applicant & set aside the entire sale. Against that decision both the D. H, & the auction purchaser preferred appeals before the Dist. J, The appeals were heard by an Additional Dist. J. who set aside the sale so far as the one-sixth share of the applicant Jiaul Huq is concerned but upheld the sale so far as the remaining five-sixth interest is concerned.
4. Against this decision, Civil Rule No. 1219 of 1948 has been obtained by the auction purchaser, whereas Civil Rule 1330 of 1948 has been obtained by Jiaul Huq, the applicant under Order 21 Rule 90, Civil P. C. Civil Rule No. 1331 of 1948 has been obtained by Shamsul Huq & three others & Civil Rule No. 1332 of 1948 by Mohammad Hossain.
5. I shall take up Civil Rule No; 1219 of 1948 first.
6. On behalf of the auction purchaser, the main point canvassed before me by Mr. Gupta is to the effect that the lower courts were entirely wrong in holding that the applicant Jiaul Huq Was entitled to the benefit of Section 18, Limitation Act, & in this connection strong reliance has been placed upon the recent Bench decision in the case of 'Mihirlal v. Panchkari Santra', 54 C. W. N. 637. It has been contended that it has not been proved or found clearly that there was fraud on the part of the auction purchaser & as such so far as the auction purchaser is concerned the applicant for setting aside the sale under Order XXI Rule 90 Civil P. C. is not entitled to the benefit of Section 18, Limitation Act.
7. In reply to this argument, it is contended on behalf of Jiaul Huq that the necessary ndings of fraud on the part of the auction purchaser were there & as such there was no reason why Jiaul Huq should not get the benefit of Section 18, Limitation Act. It was further contended that upon the findings of the lower courts to the effect that all the material processes were suppressed, the present application for setting aside the sale should be treated as one under Section 47 Civil P. C. & as such the applicant haying come within three years of the sale no question of limitation arises at all.
8. As regards the second contention it may be mentioned that in the application itself' it was described as one under Order XXI R, 90, Civil P. C. Secondly, the contents of the application show that it was clearly, one under Order XXI Rule 90, Civil P. C. The sale was attacked as having been vitiated by fraud in publishing or conducting it. Moreover it is for the first time that it has been suggested in this Court at the time of hearing arguments that the application might be treated as one under Section 47, Civil P. C.
9. In my opinion, in view of the clear wording of the application there is no escape from the conclusion that it was really under Order XXI Rule 90, Civil P. C, & there is no scope for the argument, after the amendment of Rule 90, that the application might also be treated as one under Section 47, Civil; P; C. In these circumstances, 1 am unable to assent to the second branch of the argument of Mr. Jana, or to agree with him that the decision in the case of 'Ram Kinkar v. Sthiti Ram', 27 C. L. J. 528, cited by him, will govern the present Case.
10. Coming now to the case of 'Mihirlal v. Panchkari Santra, 54 C. W. N. 637', it is obvious that there is a clear conflict of judicial opinion on the main point settled by that case; but this recent Bench decision is binding upon this Court.
11. Let me how proceed to see whether in spite of this decision the applicant Jiaul Huq can have any benefit under Section 18, Limitation Act. Mihirlal's case lays down that before any extension of time can be granted under Section 18, Limitation Act, in an application for setting aside the sale under Section 174 (3), Bengal Tenancy Act, it must be proved that the Ruction purchaser was either guilty of the fraud, or accessory to the fraud that prevented the J, D. from knowing of the sale. Mr. Jana has contended that in any case upon the proved facts & circumstances of th,e present case, there is no? escape from the conclusion that the auction purchaser Manmatha Mukherjee was at least accessory or privy to the fraud attending upon the sale. In this connection he has drawn my attention to certain findings' arrived fit, by the lower appellate court, as also to. certain observations made by the trial court. Mr. Gupta has contended that there is nowhere any precise finding about fraud on the part of the auction purchaser.
12. Reading the Judgment of the lower' appellate court as a whole & considering the circumstances referred to therein, it seems to me that it has been found that there was fraud not only on the part of the D. H. but also on the part of the auction purchaser as well. I shall presently refer to some, of the circumstances. It has been found clearly & unequivocally that certain mortgagees practised fraud upon the Court. Among the mortgages there are a son & a son-in-law of the auction purchaser. The Corporation of Calcutta was the D. H. & it has been found that some relatives of the auction purchaser are employees of the Calcutta Corporation. There is also a finding that one such relation is a Corporation Councillor. It has been contended, however, on behalf of the auction purchaser, as also on behalf of the Corporation, that there is no positive evidence in support of this finding. In the circumstances I leave out of account that particular finding about one of the relevant persons being a Corporation Councillor. The other findings, however, raise strong suspicion about fraud on the part of the auction purchaser; that suspicion is strengthened by the circumstance, as pointed out by the lower appellate court, that the auction, purchaser himself: did not choose to come to depose in spite of definite allegations against him. Along with this circumstance may be considered the facts that the property was grossly undervalued as found by the courts below, that it was sold at a grossly inadequate price as found again concurrently by the lower courts, that no notice under Rule 66 was erved, and that the sale proclamation was suppressed. It is true that charge of fraud & collusion must be proved by those who make them & must, be proved by established facts or inferences legitimately drawn from those facts taken together as a whole, as pointed out by the Privy; Council, but as pointed out further by the Judicial Committee in the same case though' suspicions & surmise & conjectures are not permissible substitutes for those facts or those inferences, that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled & cleared up & made plain before a verdict can properly be found aga-linst him. These observations, in my opinion, are quite pertinent so far as the facts & circumstances of the present case are concerned. If all the cir-Jcumstances are considered together, the court would be justified in corning to the conclusion that in [effect the auction purchaser was at least accessory to the fraud, that is, privy to it, & to my opinion, the judgment of the lower appellate court can be read in that way. In this view of the matter, the decision in the case of 'Mihirlal v. Panchkari Santra,' 54 C. W. N. 637, does not really stand in the way of the applicant Jiaul Huq.
13. It was further urged before me on behalf of the auction purchaser that in coming to its conclusion about the date of knowledge of sale, on the part of Jiaul Huq, one piece of material evidence, namely, V 3, which purports to show that a notice was served upon Jiaul Huq on 22-1-1944, was entirely ignored by the lower appellate court.' That notice purports to show that it was served upon one Korban Sheikh who was supposed to be the authorized agent of Jiaul Huq & in this connection my attention has been drawn to an affidavit filed by Korban Sheikh on 1-1-1948. As regards this item of evidence, namely, Ex. V3, I have doubts whether the attention of the lower appellate court was specifically drawn to it. Apart from that, upon the materials on record nothing as been placed before me to show that on 22-1-1944, Korban Sheikh was really an authorised agent of Jiaul Huq, so that a notice received by Korban Sheikh might be accepted as service Of notice upon Jiaul Huq. Moreover sitting in exercise of my re-visional jurisdiction, I shall be loath to go back upon the express concurrent findings of the lower courts to the effect that Jiaul Huq came to know of the sale for the first time on 26-8-1944.
14. I may mention incidentally that on behalf of Jiaul Huq my - attention was drawn to the certified copy of a plaint in a partition suit, namely, Partition Suit No. 45 of 1947. It appears that an application was filed in the lower court for reception of that certified copy as additional evidence, but ultimately no orders were passed upon that application & the document was not taken into consideration by the lower appellate court. In these circumstances, as the document was not received in evidence, whether rightly or wrongly, I do not think that I shall be justified in basing my decision on a consideration of it at this stage.
15. In view of the above findings, the Rule obtained by the auction purchaser, namely, Civil Rule No. 1219 of 1948, must be discharged.
16. I shall take up now Civil Rules Nos. 1330, 1331 & 1332. Civil Rule No. 1331 is by four J. Ds. including two, namely Sarful Hoque & Ahmad Hossain, who have not filed any application under Order XXI, Rule 90, Civil P. C. It may be added that another applicant, so far as that Rule is concerned, namely, Mohammadul Haque, filed an application previously under Order XXI Rule 90, Civil P. 0. & he lost after a fight upto this Court. Civil Rule No. 1330 is by Jiaul Huq who has filed the present application under Order, XXI Rule 90, Ciyil P. C. for setting aside the sale & Civil Rule 1332 is at the instance of Mohammad Hossain who had filed an application previously under Order XXI Rule 90 Civil P. C. & lost upto this Court.
17. It will be seen that the applicants so far as these Rules are concerned cover all the J. Ds. including those (three) whose previous applications for setting aside the sale were unsuccessful as also two who have not filed any application at all under Order XXI, Rule 90, Civil P. C. for setting aside the sale. It has been urged on behalf of these applicants that in view of the findings that the sale is liable to be set aside on the ground of fraudulent suppression of processes resulting in substantial injury, the entire sale & not only the one-sixth of it has got to be set aside. In this connection reliance has been placed inter alia upon the decisions in the cases of 'Ramesh Chandra v. Birajasundari 32 C. W. N. 519 and 'Shila Pal v. Comilla Banking Corporation Ltd., 49 C. W. N. 159, for the propositions, firstly, that a sale cannot be set aside partially, but must be set aside as a whole; secondly, that if a sale is set aside at the instance of one' J. D., the other J'. Ds. who did not apply are also entitled to have the benefit of the decision Of the 'court in regard to the setting aside of the entire sale; & thirdly, that limitation would not be a bar in such cases.
18. On behalf of the auction purchaser & the D. H. it has been contended that so far as three of the J. Ds. namely, Mohammad Hossain, Samsul Hoque & Mohammdali are concerned, their previous applications under Order XXI Rule 90, Civil P. C. having been dismissed, they at any rate are not entitled to come in now & say that the entire sale should be set aside & that they should be allowed to get any benefit out of the present application filed by Jiaul Huq. In support of this contention reliance was placed upon the case of 'Amulya Krishna v. Dilip Kumar', 41 C. W. N. 224. The correctness of this ruling was called in question before me by the learned Advocates for the J. Ds. & it was argued that this case was not consistent with the principles laid down in the cases reported in 32 C. W. N. 519 and 49 C. W. N. 159, to which re-ference has been made. So far as this Court is concerned, it is bound; however, by the decision in the case of 'Amulya Krishna', 41 C. W. N. 224, which is directly in point- The headnote of that Bench1 decision may be quoted in this connection:
'When after an application under Order XXI Rule 90, Civil P. C, by some of the J. Ds. has been dismissed, a similar application by another J. D. is allowed, the entire sale cannot be set aside, but it will stand confirmed as regards the share & interest of the J. Ds. whose applications have previously failed.'
19. It will also appear from the above ruling that; in appropriate circumstances it is permissible to set aside a sale in part. Authority for the, same proposition is also to be found in the case of 'Rampada Nag v. Kanai Rai,' A. I. Rule (13) 1926 Cal. 1219, which was a decision by a Division Bench. It will be pertinent to quote the following passage from that decision:
'On the main question it is said that the sale cannot be partially set aside; There is ample authority that this can be done',
& in this connection reliance was placed upon the decisions in the cases of 'Khiarajmal v. Daim', 32 I-A 23, and Rajagopala Ayyar v. Ramanujachariar, 47 Mad. 288. In the case of 'Ramesh , Chandra'. 32 C. W. N. 519, however, Suhrawardy, J. who was one of the Judges who decided the case of 'Rampada Nag v. Kanai Rai, A. I. R. (13) 1926 Cal. 1219, explained that decision (p. 524) &came; to the conclusion entirely different from the previous decision. It was held in the case of 'Ramesh Chandra', 32 C. W. N. 519, that under Order XXI Rule 90, Civil P. C. the entire sale could be set aside at the instance of one of several J. Ds. & that Order XXI Rule 90 of the Code does not contemplate the setting aside of a sale partially. It is obvious, therefore, that there is some conflict of judicial opinion as regards the propriety or validity of setting aside a sale partially. To me it appears that generally a sale should be set aside or confirmed in its entirety, but this proposition is subject to certain qualifications, as for instance, the bar of limitation, res judicata etc., So far as the present Rules are concerned, as has been observed before, the applicants Sarful Hoque & Ahammad Hossain have not filed any application at all under Order XXI Rule 90, Civil P. C. As regards their prayer for setting aside the entire sale, the lower appellate court observes:
'Unless these two brothers come forward & discharge the initial onus by saying that they had no knowledge before 26-8-1946, their claim cannot be allowed being barred by limitation.'
20. It was further observed that they did not say, when they had knowledge of the sale, nor do they apply for setting aside the sale. I have some doubts whether without a proper application from them under Order XXI Rule 90, Civil P. C. for setting aside the sale, they can be heard to say that the sale should be set aside in respect of their share as well. Apart from that, it seems to me that the bar of limitation, as pointed out by the lower appellate court, stands very much in their way. In this connection I may mention that my attention was drawn by the learned Advocate for the auction purchaser to Ex. U which purports to show that a notice under Order XXI, Rule 66, was served upon Sarful Hoque & Ahammad Hossain. Apart from the question of limitation, it would appear, therefore, that in view of the provisions of proviso (ii) of Order XXI Rule 90, Civil P. C. they are not entitled to come in & to say that the sale in respect of their share of the property should be set aside as well.
21. In view of these considerations, I am of opinion that the lower appellate court was justified in setting aside the sale only in respect of the one-sixth share of Jiaul Huq & confirming the sale in respect of the remaining five-sixth interest. These Rules must accordingly be discharged.
22. In the result, all the Rules are discharged, but in view of the circumstances, the parties are directed to bear their own share of the costs in all these Rules.