Skip to content


Jotindra Mohun Rai Chowdhury Vs. Brojekdra Kumar Datta Munshi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal728,24Ind.Cas.249
AppellantJotindra Mohun Rai Chowdhury
RespondentBrojekdra Kumar Datta Munshi and ors.
Cases ReferredTookomoni Dassi v. Dwarka Nath
Excerpt:
limitation act (ix of 1908,), section 18 - person aggrieved kept out of knowledge of right to have relief by reason of fraud--execution sale--fraud of decree--holder and collusion with court officers--suppression 'of notices--judgment--debtor hept out of knowledge of sale--applicability of section 18--fraud subsequent to sale, if necessary to be proved. - .....execution of this decree. the sale took place on the 23rd june 1909, and it is alleged that the decree-holders purchased the property in the nam.3 of one armanullah. it also appears from au examination of the record, although no reference has been made to this circumstance in the judgment of either of the courts below, or in the course of the arguments addressed to us, that on the 26th september 1909 the decree-holders obtained delivery of possession through the court, but it may be a matter for determination hereafter whether this represents a genuine delivery of possession. on the 28th may 1912 the judgment-debtors applied to have the sale set aside, on the ground that the decree-holders had fraudulently brought about the sale of their property and had purchased ii for a very small.....
Judgment:

1. We are invited in this Rule to set aside an order by which the Court of appeal below, in reversal of the decision of the Court of first instance, has dismissed an application to set aside an execution sale. The facts have not been investigated by the Subordinate Judge, but he has held that as there is no allegation or proof of fraud subsequent to the sale, the application is clearly barred by limitation. We must, consequently, for the purpose of tin's Rule, assume that the facts as alleged by the judgment-debtors-petitioners have been established.

2. On the 11th August 1908 the landlords obtained an ex parte decree for rent against the tenants. On the 6th May 1909 they applied for execution of this decree. The sale took place on the 23rd June 1909, and it is alleged that the decree-holders purchased the property in the nam.3 of one Armanullah. It also appears from au examination of the record, although no reference has been made to this circumstance in the judgment of either of the Courts below, or in the course of the arguments addressed to us, that on the 26th September 1909 the decree-holders obtained delivery of possession through the Court, but it may be a matter for determination hereafter whether this represents a genuine delivery of possession. On the 28th May 1912 the judgment-debtors applied to have the sale set aside, on the ground that the decree-holders had fraudulently brought about the sale of their property and had purchased ii for a very small sum, and that they had discovered the fraud only so recently as the 11th May 1912. Their allegations are that the property comprised 40 bighas of land worth at least Rs 1,000, that the decree-holders deliberatly described the property as 10 bighas and valued it for the purpose of the sale proclamation at Rs. 40 and that in collusion with the peon, they suppressed all notices and induced him to file a false return in Court with the result that at the sale there was no independent bidder present. An examination of the bid-sheet shows that there was an apparent contest between the decree-holders and Armanullah and that the property was ultimately knocked down for Rs. 100 to the latter person. The entire proceedings make it fairly clear, however, that the property was purchased by the decree-holders themselves. Armanullah has not entered appearance at any stage to support the sale impeached by the judgment-debtors, and in this Court it was conceded that the decree-holders had in reality purchased the property in the name of Armanullah. The Court of first instance found that the property comprised 40 bighas of land, worth at least Rs. 400, and that the decree-holders had managed to secure it for Rs. 100 only without any rival bidders, as the sale proclamation had not been published. But the Court did not determine the question of limitation. Under Article 166 of the second Schedule to the Limitation Act, an application for reversal of the sale is required to be presented within 30 days of the date of sale and as the application in this case was presented long after the expiry of the period prescribed, the judgmant debtors could succeed only if they brought this case within the terms of Section 18 of the Indian Limitation Act. The Court of first instance, however, without an adjudication upon the questions of fraud and limitation set aside the sale. Upon appeal the Subordinate Judge has reversed that decision on the ground of limitation, without an investigation of the facts.

3. We have been invited to set aside this decision on the ground that the judgment of the Subordinate Judge is materially defective inasmuch as he has not determined any of the essential matters in controversy between the parties. On behalf of the decree-holders, an earnest endeavour has been made to support the decision of the Subordinate Judge on the ground that as no fraud has been alleged or proved subsequent to the date of sale, the judgment-debtors are not entitled to the benefit of Section 18. In support of this view reliance has been placed principally upon the decision of Puma Chandra Mandal v. Anukul Biswas 2 Ind. Cas. 844 : 36 C. 654. and Srimati Rai Kishori Dasi v. Mukund Lal Dutt 11 Ind. Cas. 295 : 15 C.W.N. 965. and to a subordinate extent upon the decision in Tookoomoni Dasi v. Dwarka Nath Dinda 17 Ind. Cas. 972 : 16 C.L.J. 581 : 17 C.W.N. 478.. In so far as the case of Purna Chandra Mandal v. Anukul Chandra Biswas 2 Ind. Cas. 844 : 36 C. 654. is concerned, there is no doubt a dictum in the judgment to the effect that the question of limitation depends upon what has taken place after the date of the sale. But as was observed in the case of Narayan Sahu v. Damodar Das 16 Ind. Cas. 464 : 16 C.W.N. 894. this passage is capable of a meaning to which no exception can be taken. To determine the applicability of Section 18 of the Limitation Act to the circumstances of a particular case the Court must determine whether the person aggrieved by the alleged fraud has been, as a matter of fact, kept out of knowledge of his right to have relief by reason of the fraud. If it is proved that subsequent to the sale, he was, as a matter of fact, aware of the sale, notwithstanding the fraud, he is clearly not entitled to the benefit of Section 18, because inspite of the fraud he has not bean rent out of the knowledge of his right to have relief on the ground of fraud. On the other, hand if the cases of Puran Chandra Mandal v. Anukul Biswas 2 Ind. Cas. 844 : 36 C. 654. and Srimati Rai Kishori v. Mokund Lal Dutt 11 Ind. Cas. 295 : 15 C.W.N. 965. were intended to lay down the broad proposition that to entitle a person to avail himself of the provisions of Section 18, he is bound to allege and prove fraud subsequent to the date of sale, the view is, as pointed out in the case of Srimati Rai Kishori Dossya v. Mokund Lal Dutt 11 Ind. Cas. 295 : 15 C.W.N. 965., contrary to the decision of their Lordships of the Judicial Committee in Rahimbhoy Habibbhoy v. Turner 20 I. A. I : 17 B. 341 at 347. In this case Lord Hobhouse observed that when a man has committed a fraud and has got property thereby, it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute fraud, at a time which is too remote to allow him to bring the suit. The terms of Section 18 of the Indian Limitation Act are perfectly plain and there is no real difficulty in its application. The section provides that, where a person having a right to make an application has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, the time limited for making the application against the person guilty of the fraud or accessory there to shall be computed from the time when the fraud first became known to the person injuriously affected thereby. Consequently whoever desires to avail himself of Section 18, has to establish, in the first place, that there has been fraud, and in the second place, that by means of this fraud he has been kept from the knowledge of his right to make an application. In the case before us the judgment-debtor alleges that the decree-holders, fraudulently and in collusion with the officers of the Court, caused a suppression of the notices with the result that they were not apprised of the sale as they would otherwise have been in due course, in other words, by means of fraud they were kept from the knowledge of the sale. Their right to have the sale set aside accrued the very moment the sale took place. If they were, by means of fraud, kept from the knowledge of the sale, they ware necessarily kept from the knowledge of their right to have the sale set aside. No doubt the decree-holders may possibly establish that, inspite of the alleged fraudulent suppression of the processes, the judgment-debtors were aware of the sale and consequently of their right to have the sale vacated. But if it is established that by means of fraud the judgment-debtors were kept in ignorance of the fact of sale of their property, it is difficult to appreciate how the position can be maintained that they have not been kept from the knowledge of their right to have the sale set aside on the ground of fraud. We are consequently of opinion that upon a plain reading of Section 18, it is not essential to prove that there has been fraud subsequent to the date of sale. Reliance has, however, been placed upon the decision of Tookomoni Dassi v. Dwarka Nath 17 Ind. Cas. 972 : 16 C.L.J. 581 : 17 C.W.N. 478. which is of no real assistance to the decree-holders. In that case the judgment-debtors alleged that there was fraud on the part of the execution purchasers after the sale. In proof of such alleged fraud they relied upon evidence of fraud antecedent to the sale, which the Court below declined to examine. It was in these circumstances that this Court ruled that to determine whether there has been fraud subsequent to the sale, evidence of fraud antecedent to the sale may be very material, because the fraud subsequent may be a continuation of the fraud antecedent uninterrupted by the sale. We are clearly of opinion that the view taken by the Subordinate Judge cannot be supported and we may add that it is fairly clear that the true bearing of Section 18 has not been correctly appreciated by either of the Courts below.

4. The result is that the Rule is made absolute-, the decision of the Subordinate Judge set aside and the case remanded to the Court of first instance for re-trial. We are informed that the decree-holders had no opportunity to adduce evidence in that Court. Each party will be at liberty to adduce fresh evidence in support of his case. The Court will first determine whether fraud has been established as alleged by the judgment-debtors. If fraud is proved, the Court will proceed to determine whether the judgment-debtors had been kept out of the knowledge of their right to have the sale set aside by means of such fraud. The petitioners are entitled to their costs both here and in the Court of the Subordinate Judge. We assess the hearing fee in this Court at two gold mohurs.


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