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1945 DIGILAW 163 (CAL)

Sarat Chandra Dey v. Abdul Kaiyam

1945-07-17

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JUDGMENT Mukherjea, J. - This Rule is directed against an appellate judgment of the District Judge of Chittagong dated the 31st May, 1944, reversing an order made by the Munsif, First Court, Satkania, by which he set aside a rent sale under sec. 174 (3) of the Bengal Tenancy Act. The material facts are not in controversy and may be stated as follows: Opposite Parties Nos. 1 and 2 obtained a decree in a rent suit brought by them against the Petitioners and other judgment-debtors in the Court of the Munsif of Satkania. In execution of the said decree, the holding in arrears was put up to sale and it was purchased by the decree-holders themselves on the 7th October, 1942. 2. On the 24th July, 1943, the Petitioners who are some of the judgment-debtors presented this application for setting aside the sale under sec. 174 (3) of the Bengal Tenancy Act on allegations of fraud and irregularity in publishing and conducting the sale which resulted in a substantial injury to the Petitioners. 3. The trial Court allowed the application and set aside the sale. The learned Munsif held on evidence that the sale proclamation was not duly served and that the price of the property as given in the sale proclamation was inordinately low. This under-statement in price, according to the learned Munsif, amounted to fraud, and he held that though the application for setting aside the sale was presented long after the period of limitation had expired, the Petitioners were entitled to an extension of time under sec. 18 of the Indian Limitation Act. The Munsif further found, that by reason of the fraud and irregularity mentioned aforesaid, the property which was worth nearly Rs.1500 was sold for a sum of Rs. 199 only. 4. Against this judgment, the decree-holders auction-purchasers took an appeal to the Court of the District Judge of Chittagong. The learned District Judge allowed the appeal and set aside the judgment of the trial Judge. It is against this appellate order that the present Rule has been obtained. 5. On the facts found by the trial Judge, which were not reversed on appeal, there can be no doubt that there were various irregularities in publishing and conducting the sale by reason of which the property was sold at an inadequate price. It is against this appellate order that the present Rule has been obtained. 5. On the facts found by the trial Judge, which were not reversed on appeal, there can be no doubt that there were various irregularities in publishing and conducting the sale by reason of which the property was sold at an inadequate price. Had the application of the judgment-debtors been within time, we would have no hesitation in setting aside the sale. The difficulty, however, lies in that the application was made after six months had expired from the date of the sale, and consequently it is incumbent upon the Petitioner to show how they can get round the plea of limitation. The learned District Judge is of opinion that no fraud had been established which would entitle them to an extension of time under sec. 18 of the Indian Limitation Act. 6. Having heard the learned Advocates on both sides, we are of the opinion that this view of the learned District Judge is right. The only fraud that has been found by the Munsif is that there was gross under-statement of price in the sale proclamation. It is well settled that mere under-statement of price in the sale proclamation does not amount to fraudulent concealment within the meaning of sec. 18 of the Indian Limitation Act. Vide Narayan Sahu v. Mohanth Damodar Das 16 C.W.N. 894 (1912), Lord Bishop of Mylapore v. Meher Ali 41 C.W.N. 993 (1937) and Abul Jamail v. Ambia Khatun 43 C.W.N. 862 (1939). 7. It is perfectly true that the property worth nearly Rs. 1500 has been sold at a grossly inadequate price, but the Petitioners have not been able to make out a case for extension of time under sec. 18 of the Indian Limitation Act either in the petition or in the records. In these circumstances, we have no other alternative but to discharge this Rule. This Rule is discharged. Having regard to the circumstances of this case, we direct that the parties will bear their own costs in all the Courts. Sharpe, J. I agree.