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Sm. Bhushanmani Dasi Vs. Prafulla Krista Deb Bahadur and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.801
AppellantSm. Bhushanmani Dasi
RespondentPrafulla Krista Deb Bahadur and ors.
Cases ReferredRahimbhcy Babilbhoy v. Turner
Excerpt:
civil procedure code (act v of 1908) ,section 115, order xxi, rule 90--execution of decree--sale, application to set aside--limitation, terminus a quo--revision--material irregularity. - .....applicant who was examined on commission. in the course of this deposition she stated that she had hearsay knowledge of this sale come two to three months before the application wag preferred. from the date of this hearsay knowledge of the fact of sale the courts below are of opinion that limitation should run. we are unable to think that they are right in go holding. the applicant must have knowledge not merely of the factor of the sale, but a clear and definite knowledge of the facts which constitute the fraud before time can run against him or her. this is apparent from a number of reported cases, to one of which we may refer, camely, narayan sahtt v. damodar das 16 ind. cas. 464 : 16 c.w.n. 8912. this case and other cases show that, when by a fraud of this nature, involving.....
Judgment:

1. This Rule is d treated against an order by which the District Judge of the 24 Pargannas affirms the, order made by the Munsif, First Court, at Diamond Harbour By the said order the Munsif rejected an application for setting aside a gala made on the ground of fraudulent suppression of process, certain irregularities, and insufficiency of price. Both courts have held that the application was barred by limitation, and in coming to this conclusion they have proceeded merely on the deposition of the applicant who was examined on commission. In the course of this deposition she stated that she had hearsay knowledge of this sale come two to three months before the application wag preferred. From the date of this hearsay knowledge of the fact of sale the Courts below are of opinion that limitation should run. We are unable to think that they are right in go holding. The applicant must have knowledge not merely of the factor of the sale, but a clear and definite knowledge of the facts which constitute the fraud before time can run against him or her. This is apparent from a number of reported cases, to one of which we may refer, camely, Narayan Sahtt v. Damodar Das 16 Ind. Cas. 464 : 16 C.W.N. 891

2. This case and other cases show that, when by a fraud of this nature, involving suppression of process and submission of. false returns, the applicant is kept out of knowledge of the sale of his property such fraud must be held to have a continuing influence. Indeed, in such a case it is for the other side to show that the injured party had clear and definite knowledge of the facts which constitute the fraud at a time from which, taken as a starting point, the suit is barred.

3. In this connection we may refer to the decision of their Lordships of the Privy Council in Rahimbhcy Babilbhoy v. Turner 17 B. 341 : 20 I.A. : 6 Sar. P.C.J. 256 : 17 Ind. Jur. 40 : 9 Ind. Dec. (N.S.) 222, Relying upon these passages in her deposition in which the applicant admits hearsay knowledge of the sale two or three months before the date of her application, the Courts below shut out all other evidence which the applicant prepared to give as regards the suppression of processes and the other irregularities of which she complains. Thus, they have not merely fallen into an error but also acted with material irregularity in the exercise of their jurisdiction and this, therefore, gives this Court jurisdiction to interfere under Section 115 of the Code of Civil Procedure.

4. In this view, we must set aside the orders of both the Courts below and remit this case to the Court of first instance in order that it may deal with it and dispose of it in aosordantoe with law.

5. Costs of this Rule will be costs in the case. We assess the hearing fee at three gold mohurs.


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