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Azizannessa and ors. Vs. Dwarika Prosad Boral and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal1227
AppellantAzizannessa and ors.
RespondentDwarika Prosad Boral and ors.
Cases ReferredMohendra Narain Chaturaj v. Gopal Mondul
Excerpt:
- .....sales. the learned district judge reversed those findings and held that the sales were good. the decree-holder is the opposite party no. 1 in the rule, and the auction-purchaser the opposite party no. 2, while opposite parties nos. 3 and 4 are some of the tenants, who executed a mortgage in favour of the auction-purchaser and have settled their dispute with him under a compromise in the execution proceedings.3. the sales were under the bengal tenancy act and were held on the 10th june 1922. on the 3rd december 1932 the possession of the property sold was delivered to the auction-purchaser. on the 2nd january 1923 six applications were filed to set aside the sales. in these applications two grounds were taken. the first was under order 21, rule 90 of the civil p.c., charging fraud on.....
Judgment:

1. These six Rules have been obtained in regard to the decree of the learned District Judge of Dinajpore hisposing, in appeal, of six applications to dave that number of sales vacated.

2. The learned Munsif allowed the applications and set aside the sales. The learned District Judge reversed those findings and held that the sales were good. The decree-holder is the Opposite Party No. 1 in the Rule, and the auction-purchaser the Opposite Party No. 2, while Opposite Parties Nos. 3 and 4 are some of the tenants, who executed a mortgage in favour of the auction-purchaser and have settled their dispute with him under a compromise in the execution proceedings.

3. The sales were under the Bengal Tenancy Act and were held on the 10th June 1922. On the 3rd December 1932 the possession of the property sold was delivered to the auction-purchaser. On the 2nd January 1923 six applications were filed to set aside the sales. In these applications two grounds were taken. The first was under Order 21, Rule 90 of the Civil P.C., charging fraud on the part of the decree-holder and the auction-purchaser. The second was, that as one of the judgment-debtors died 'before the institution of the execution proceedings the sales were bad. The learned District Judge has found that the applications under Order 21, Rule 90 were barred by limitation. As regards the second point, he held that even if the legal representatives of the deceased judgment-debtor had not been brought on the record the sales were not invalid though those persons might not be affected thereby.

4. The learned vakil for the petitioners has contended in the first place that as it has been found that one of the judgment-debtors, Abdul Halim, died before fine execution proceedings began, the sales were bad. He refers to O.21, Rule 22, Civil P.C. which provides for service of notice on the judgment-debtors. As, however, the judgment-debtor was dead at the time evidently no notice was served upon him. No notice was served upon his heirs also, So the Court had no jurisdiction to proceed with the sales. He has referred to the case of Raghunath Das v. Sundar Das Khetri A.I.R. 1914 P.C. 129, where their Lordships of the Judicial Committee observed that a notice of the kind specified in the section was essential, and if it was not served the Court had no jurisdiction no proceed.

5. It seems to us that this argument is to some extent based on a misapprehension. We find that in Rule No. 448 the name of Abdul Halim is not mentioned as a judgment-debtor, the decree being passed against a person named Emajuddi. So far, therefore, as this Rule is concerned this argument is of no avail. In regard to the five other Rules it would seem that the name of Abdul Halim was given in the applications for execution. It appears, however, that he was a minor and that, therefore, his property on his death devolved upon his mother and his full brother. These two persons' names were already on the record as being judgment-debtors. Though, therefore, the name of Abdul Halim was entered in the execution proceedings after his death yet in view of the fact that his legal representatives or some of them were on the record, we do not think that any further notice was necessary. The learned vakil for the petitioner has called our attention to para. 8 of the counter-affidavit, where it in said that Abdul Halim's father left two daughters, the Petitioners Nos. 4 and 7. it does not appear that these two ladies' names were in the execution proceedings. But we do not think that service of notice upon them was in the circumstances absolutely essential and if their names were omitted that would amount to nothing more than and irregularity, which would not vitiate the proceedings

6. In the second place it has been contended that the learned District Judge's finding that the fraud must to the work of the decree-holder in order to save limitation is incorrect. The learned Judge says: The fraud must be by the decree-holder (or his agent) or the bar of limitation is not removed.' The learned vakil has referred to the Full Bench case of Mohendra Narain Chaturaj v. Gopal Mondul [1890] 17 Cal 769 (F.B) where, at page 776, the learned Judges observed: 'I think that under Section 18 of the Limitation Act, where irregularities affecting the validity of the sale have been, by the fraud of the judgment-creditor or other parties to the sale, kept. concealed from the judgment-debtor, he is entitled, whether the sale has teen confirmed or not, to make, as against the person guilty of the fraud or ascesssory thereto such application, if any, under Section 311 as he may be entitled to make, his time or making it being computed from the time when the fraud first became knows to him,' The learned vakil has empahasized the words 'or other parties to the sale,' and has argued that the auction purchaser will come under that category.

7. It appears to us that if the decree-holder is no party to the fraud it would not be enough to show that fraud has been committed by the auction-purchaser alone. The learned Judge, it is true, does not go further than saying that the auction-purchaser had a motive for it and the learned vakil has suggested that it might be necessary to send back the case in order to have a clear finding as to whether the auction-purchaser was guilty of fraud or not. We do not think, however, having regard to the circumstances of the case, that any remand order is necessary. The decree-holder has been found by the learned Judge not to have been guilty of fraud: He says: 'There is nothing to suggest that the decree-holder or his superior officers had any reason to commit fraud,' and further on: ''I, there-fore, hold that even though irregularities may have taken place, fraud by the decree-holder has not been proved and the applications were, therefore, barred by limitation.' We are evidently concluded by the findings of fact on this point, and we must hold that in the absence of proof of fraud by cogent and satisfactory evidence these applications must be held to be barred by limitation.

8. The result, therefore, is that these Rule are discharged. We assess the hearing-fee at one gold mohur in each case, to be divided equally between the two opposite parties, who have appeared in these Rules.


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