Mihirlal v. Panchkari Santra — 1949 DIGILAW 626 (CAL)

Judgement Das GUPTA, J. :- The applicant before us purchased at auction an occupancy raiyati holding, in execution of a rent decree. The sale was held, on 13th March 1946. On 25th April 1946, an application was filed by one Kachimannessa Bibi claiming to have purchased the interest of the judgment-debtors, for setting aside the sale under the provisions of S. 174(3), Bengal Tenancy Act. This application was dismissed by the Court on 13th December 1947. On 6th January 1948, the auction-purchaser the petitioner before us filed an application for confirmation of the sale. The sale was ultimately confirmed on 17th Match 1948. On 27th June 1948, an application was filed by two of the 17 judgment-debtors who ate Panch Kari Santra and Satya Bala Dasi, opposite parties Nos. 1 and 2, under S. 174(3), Bengal Tenancy Act, for setting aside the sale on the ground of fraud and irregularity in publishing and conducting the sale. The learned Munsif allowed the application and the learned District Judge has dismissed the appeal that was filed by the present petitioner against that decision. The learned District Judge has come to the conclusion that the decree-holder was guilty of fraud inasmuch as he mentioned the value of the holding at Rs. 10 only in the sale proclamation and further that he fraudulently suppressed the sale proclamation and other notices. He also came to the conclusion that the auction-purchaser was also guilty of fraud and that consequently the applicants under S. 174(3), Bengal Tenancy Act, were entitled to the benefit off S. 13, Limitation Act, an so, the application though filed long after sis months after the date of the sale, was not barred by limitation. 2. The first question agitated before us is whether the learned District Judge acted irregularly and illegally in the exercise of his jurisdiction in coming to the conclusion that the auction purchaser was also guilty of fraud. The learned District Judge appears to have based his decision in this matter on two facts, first, that the auction purchaser has benefited by the fraud on the part of the decree-holder inasmuch as there was paucity of the bidders because of the gross under valuation in the sale proclamation and the auction-purchaser was thus able to have the land for an inadequate price. The other ground on which the learned District Judge relied was that the auction purchaser did not apply for delivery of possession for two years after the date of the sale. 3. It has been pointed out to us by Mr. Mukherji on behalf of the petitioner that the learned District Judge misread the evidence, inasmuch as he omitted to notice that the sale was confirmed as late as 21st February 1948 so that the delay of the auction-purchaser was not 2 years but only one month. I am myself unable to agree that the mere fact that the auction-purchaser makes delay in applying for delivery of possession can be any ground for thinking that he is acting fraudulently with a view to prevent the judgment-debtors from knowing about the sale. But even if such delay can justify any conclusion as regards fraud, it is abundantly clear that there was us such delay as the learned District Judge seems to have wrongly thought. From the facts pointed out above it appears that though the sale was actually held on 13th March 1946 the application under S. 174(3) filed by Kachimannesea was not disposed of till 13th December 1947. It was only after that application was disposed of that the auction-purchaser could take any steps for getting the sale confirmed. That he did, as we have seen, on 5th January 1943 and the sale was confirmed on 21st February 1948 and be put his application for delivery of possession on 27th March 1948. There was therefore, as already stated above, no appreciable delay on his part. 4. In my judgment the omission to look into the record in the case is a gross irregularity in the exercise of jurisdiction and the learned Judges decision based upon a faulty reading or rather a non-reading of the record that the auction purchaser was guilty of fraud cannot be allowed to stand. 5. Mr. Guha has however taken us through the evidence and has tried to convince us that quite apart from this question of delay in applying for delivery of possession there was other evidence which would justify such a conclusion. 5. Mr. Guha has however taken us through the evidence and has tried to convince us that quite apart from this question of delay in applying for delivery of possession there was other evidence which would justify such a conclusion. Of the two items of evidence pointed cut one was that the auction purchaser was present at the time when the sale proclamation was served when the decree-holder was also present the other was that in Court he has given false evidence as regards the service of the sale proclamation. 6. Assuming that both these facts are true, namely that the auction-purchaser was present at the time of the service of the sale proclamation where the decree-holder was also present and also that the auction-purchaser has given false evidence in the present proceedings I am unable to see how these can even remotely justify a conclusion that he was guilty of any fraud by which he intended to or managed to prevent the judgment-debtors from knowing of the sale. 7. My unhesitating conclusion is that there is no evidence on the record to show that the auction-purchaser was guilty of any fraud in connection with the sale or that by any fraudulent conduct on his part the judgment-debtors were prevented from knowing the date of the sale. 8. If therefore it is necessary before the applicant under S. 174(3), Bengal Tenancy Act, can get the benefit of S. 18, Limitation Act, in the present application that the auction purchaser must be shown to have been guilty of fraud or to have been accessory to the fraud, it must be held that the applicants could not get the benefit of the S. 18, and the application filed on 27th June 1943, was barred by limitation. 9. It has, however, been contended by Mr. Guha for the opposite party that it is not really necessary in law that the auction purchaser should be shown to be guilty of any fraud in order that the extension of time under S. 18, Limitation Act, can be given. 10. 9. It has, however, been contended by Mr. Guha for the opposite party that it is not really necessary in law that the auction purchaser should be shown to be guilty of any fraud in order that the extension of time under S. 18, Limitation Act, can be given. 10. The relevant portion of S. 18, Limitation Act, runs as follows : "Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right the time limited for instituting a suit or making an application : (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him, otherwise than in good faith and for a valuable considerations shall be computed from the time when the fraud first became known to the person injuriously affected thereby ,...." 11. Here, the application was made against the decree-holder and the auction-purchaser. As against the decree-holder on the finding with which we find no reason to interfere that he was guilty of fraud and by that fraud, namely, the suppression of processes be had kept the applicants from the knowledge of the sale, it must be held that the application is within time if we accept that the judgment-debtors first came to know of the fraud at the time when the auction-purchaser went to take delivery of possession. 12. What however is the position of the application as against the auction-purchaser ? In order that the applicants may succeed, the application must be made in time as against him also unless he be considered to be as unnecessary party. It is not within the period of six months allowed by S. 174, Bengal Tenancy Act. Obviously the applicant can succeed only if they can get the benefit of S. 13, Limitation Act. The words of the section as already mentioned above, give a special rule of computation against two kinds of persons : a person guilty of the fraud or accessory thereto or a person claiming through such other person guilty of fraud otherwise than in good faith and for valuable consideration, when each fraud has kept the plaintiff or the applicant from knowledge of this right to sue. It is difficult to see from the words of the section how the application against a person who is neither guilty of the fraud nor accessory thereto, nor is a person claiming through each other person can attract the provisions of S. 18. 13. If the auction-purchaser is not a necessary party to an application for setting aside the sale under S. 174(3), Bengal Tenancy Act, no question of limitation would arise at all, and the application would not fail, because such unnecessary party cornea on the record beyond the period of limitation. 14. The question therefore is whether the auction-purchaser is a necessary party to an application foe setting aside a sale. 15. Section 174(3) does not in words state as to who should be made a party. In S. 174A, there is a provision that no order setting aside a sale shall be made, unless notice of the application had been given to all persons affected thereby. Whatever view may be taken as regards the stage where such notice is to be given, there can be no doubt, in my opinion, that as application for setting aside the sale cannot be considered at all unless the person against whom the relief is primarily claimed has been made a party and received notice. The relief asked for is that a sale be sat aside. The one person who will suffer if this relief is granted, is the auction-purchaser. If anybody therefore is a necessary party the auction purchaser, in my opinion, the moat necessary party, the decree-holder being the other party who, in my opinion, should also be brought on the record. 16. The necessary conclusion which in my opinion cannot be escaped, unless we are to add certain things to S. 18, Limitation Act, or to ignore soma of the words actually used therein, is that the extension of time under S. 18, Limitation Act cannot be made in an application for setting aside a sale as against the auction purchaser unless he is guilty of the fraud of accessory thereto. It need hardly he mentioned that the auction-purchaser is not a person claiming through the decree-holder. 17. Reliance was placed by Mr. It need hardly he mentioned that the auction-purchaser is not a person claiming through the decree-holder. 17. Reliance was placed by Mr. Guha on two decisions of this Court, one in the cage of Kedar Hura v. Asutosh Roy, 41 CLJ 565 and the other in Makipati Haldar v. Atul Krishna, 53 C.W.N. 687 : (AIR (36) 1949 Cal 212). In the case of Kedar Hura : (44 CLJ 865), B.B. Ghose, J. sitting singly was of the opinion that the fraud by which the judgment-debtor is kept from the knowledge of his right to apply for setting aside the sale must be the fraud only of the decree-holder and it is not necessary either to allege or to prove fraud on the part of the auction purchaser. A similar conclusion was reached by Mukherjea, J., sitting singly, in the case of Mahipati Haldar : (53 C.W.N. 587 : AIR (36) 1919 Cal 212) quoted above. I find that in both these cases the learned Judges expressed their opinion that the auction purchaser was not a necessary party is an application for setting aside the sale. In fact B.B. Ghose, J. refused to rely on the previous decision in the case of Purna Ch. Mondal v. Anukul Bisiuas, 86 Cal 654 : (AIR 844) in the view that under the old Code in which the decision in Puma Chandras case : (36 Cal 654 : 2 IC 844) was given the auction purchaser was a necessary party in an application for setting aside the sale, Mukherjea, J. also appears to be of the same opinion and says that the application for setting aside the sale is directed primarily against the decree-holder at whose instance or for whose benefit the sale was held. If I could see my way to agree with these eminent Judges in this view that the auction purchaser is not a necessary party, I would hive no difficulty in coming to the conclusion that the question of limitation doss not arise at all, as regards the auction-purchaser. As stated however I am unable to agree that the auction purchaser is not a necessary party and in my view he is the moat necessary party in a case where the sale at which he purchased is sought to be set aside. 18. As stated however I am unable to agree that the auction purchaser is not a necessary party and in my view he is the moat necessary party in a case where the sale at which he purchased is sought to be set aside. 18. The other reason given by Mukherjea, J. is that if fraud on the part of the auction purchaser is held to be necessary to be proved foe an extension of time under S. 18, Limitation Act, the judgment-debtor would have absolutely no remedy where by the fraud of the decree-holder the judgment-debtor is totally kept out of the knowledge of the sale and the property has been sold for a nominal price, but the auction purchaser is not party to the fraud, or accessory thereto. 19. With great respect, I think that this is not a reason why a different interpretation should be put on S. 18, Limitation Act. If the section is properly interpreted, it does not provide the judgment-debtor with any remedy in the cases as mentioned by Mukherjea, J. The question of giving the remedy is in the hands of the Legislature. Of course, if there was any ambiguity in the language used, it would have been reasonable and possible to put the interpretation which would give the judgment-debtor a remedy. I am unable to detect any such ambiguity. 20. I am therefore unable to accept the reasoning which found favour with the two learned Judges in the cases of Kedar Hura v. Asutosh Roy : (44 C.L.J. 555) and Mahapati Haldar, (58 C.W.N. 687 : AIR (36) 1949 Cal 212) mentioned above. 21. It may be mentioned here that in it number of other cases Judges sitting singly have in this Court decided that fraud on the part of the auction purchaser is necessary to be proved in an application for setting aside a sale before extension of time under S. 18, Limitation Act can be given. Mention may be made of the decisions in the cases of Majahar Ali v. Mafijaddi Sardar, 166 IC 127 : (AIR (23) 1936 Cal 706), Saila Bala v. Atul Krishna,, 82 CLJ 9 : (AIR (35) 1948 Cal 63) and Jagiswar Das v. Deb Narain, 46 C.W.N. 403. 22. Mention may be made of the decisions in the cases of Majahar Ali v. Mafijaddi Sardar, 166 IC 127 : (AIR (23) 1936 Cal 706), Saila Bala v. Atul Krishna,, 82 CLJ 9 : (AIR (35) 1948 Cal 63) and Jagiswar Das v. Deb Narain, 46 C.W.N. 403. 22. My conclusion is that before any extension of time can be given under S. 18, Limitation Act, in an application for setting aside a sale under S. 174(3), Bengal Tenancy Act, it must be proved that the auction-purchaser was either guilty of the fraud or accessory to the fraud, that prevented the judgment debtor from knowing of the sale. 23. The result is that the application made by the present opposite parties Nos. 1 and 2 must be held to be barred by limitation and must therefore fail. Accordingly I would set aside the order passed by the learned Courts below and order that the application under S. 174(3), Bengal Tenancy Act, be dismissed. There will be no order as to costs. 24. G. N. DAS, J. :- I agree in the order proposed by my learned brother. Order accordingly.