ORDER :- Civil Revision Cases 1219, and 1330 to 1332 of 1948 are directed against a decision of the Additional Judge of Alipore arising out of proceedings commenced under O. 21, R. 90 Civil P. C. The Rules were heard together. The relevant facts are as follows : 2. The Corporation of Calcutta brought a charge suit (Title Suit No. 291 of 1940) in respect of premises No. 12, Samsul Huda Road, against six brothers including Mahammad Hossain, Samsul Huq and Jiaul Huq on 19-6-1941. The suit was decreed in a preliminary form and on 2-2-1942 the decree was made final. On 26-7-1942, an execution proceeding (Title Execution Case No. 67 of 1942) was started. The property was sold by auction in execution of the decree on 20-1-1943 and purchased by Manmatha Nath Mukherji for a sum of Rs. 9000/-. It appears that on 26-4-1943, Mahammad Hossain applied for setting aside the sale. A similar application was made by Samsul Huq and another Judgment debtor on 20-12-1943. Both these applications which were under O. 21, R. 90, Civil P. C. were fought upto this Court but the applications were dismissed. Thereafter, Jiaul Huq another J.D. filed the present application on 24-9-1945 under O. 21, R. 90 for setting aside the sale alleging inter alia that he came to know of the sale for the first time on 26-8-1945. It was alleged that there was suppression of the material processes in connection with the sale, that the property in question was grossly undervalued and that the resultant sale fetched a very inadequate price. It was further alleged that due to fraud the applicant Jiaul Huq came to know of the sale only on 26-8-1945 and not before and as such he was entitled to the benefit of S. 18, Limitation Act. The application was contested both by the D.H., namely, the Corporation of Calcutta and the auction purchaser Manmatha Mukherjee. 3. The trial court upheld the contention of the applicant and set aside the entire sale. Against that decision both the D. H. and the auction purchaser preferred appeals before the Dist. J. The appeals were heard by an Additional Dist. J., who set aside the sale so far as the one-sixth share of the applicant Jiaul Huq is concerned but upheld the sale so far as the remaining five-sixth interest is concerned. 4. Against that decision both the D. H. and the auction purchaser preferred appeals before the Dist. J. The appeals were heard by an Additional Dist. J., who set aside the sale so far as the one-sixth share of the applicant Jiaul Huq is concerned but upheld the sale so far as the remaining five-sixth interest is concerned. 4. Against this decision, Civil Rule No. 1219 of 1948 has been obtained by the auction purchaser, whereas Civil Rule 1330 of 1948 has been obtained by Jiaul Huq, the applicant under O. 21 R. 90, Civil P. C. Civil Rule No. 1331 of 1948 has been obtained by Shamsul Huq and three others and Civil Rule No. 1332 of 1948 by Mohammad Hossain. 5. I shall take up Civil Rule No. 1219 of 1948 first. 6. On behalf of the auction purchaser, the main point canvassed before me by Mr. Gupta is to the effect that the lower courts were entirely wrong an holding that the applicant Jiaul Huq was entitled to the benefit of S. 18, Limitation Act. and in this connection strong reliance has been placed upon the recent Bench decision in the case of Mihirlal v. Panchkari Santra, 54 CWN 637. It has been contended that it has not been proved or found clearly that there was fraud on the part of the auction purchaser and as such so far as the auction purchaser is concerned the applicant for setting aside the sale under O. XXI, R. 90 Civil P. C. is not entitled to the benefit of S. 18, Limitation Act. 7. In reply to this argument, it is contended on behalf of Jiaul Huq that the necessary findings of fraud on the part of the auction purchaser were there and as such there was no reason why Jiaul Huq should not get the benefit of S. 18, Limitation Act. It was further contended that upon the findings of the lower courts to the effect that all the material processes were suppressed, the present application for setting aside the sale should be treated as one under S. 47 Civil P. C. and as such the applicant having come within three years of the sale no question of limitation arises at all. 8. 8. As regards the second contention it may be mentioned that in the application itself it was described as one under O. XXI, R. 90, Civil P. C. Secondly, the contents of the application show that it was clearly one under O. XXI, R. 90, Civil P. C. The sale was attacked as having been vitiated by fraud in publishing or conducting it. Moreover it is for the first time that it has been suggested in this Court at the time of hearing arguments that the application might be treated as one under S. 47, Civil P. C. 9. In my opinion, in view of the clear wording of the application there is no escape from the conclusion that it was really under O. XXI, R. 90, Civil P. C. and there is no scope for the argument, after the amendment of R. 90, that the application might also be treated as one under S. 47, Civil P. C. In these circumstances, I am unable to assent to the second branch of the argument of Mr. Jana, or to agree with him that the decision in the case of Ram Kinkar v. Sthiti Ram, 27 CLJ 528, cited by him, will govern the present case. 10. Coming now to the case of Mihirlal v. Panchkari Santra, 54 CWN 637, it is obvious that there is a clear conflict of judicial opinion on the main point settled by that case; but this recent Bench decision is binding upon this Court. 11. Let me now proceed to see whether in spite of this decision the applicant Jiaul Huq can have any benefit under S. 18, Limitation Act. Mihirlals case lays down that before any extension of time can be granted under S. 18, Limitation Act, in an application for setting aside the 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 J.D. from knowing of the sale. Mr. Jana has contended that in any case upon the proved facts and circumstances of the present case, there is no escape from the conclusion that the auction purchaser Manmatha Mukherjee was at least accessory or privy to the fraud attending upon the sale. Mr. Jana has contended that in any case upon the proved facts and circumstances of the present case, there is no escape from the conclusion that the auction purchaser Manmatha Mukherjee was at least accessory or privy to the fraud attending upon the sale. In this connection he has drawn my attention to certain findings arrived at by the lower appellate court, as also to certain observations made by the trial court. Mr. Gupta has contended that there is nowhere any precise finding about fraud on the part of the auction purchaser. 12. Reading the judgment of the lower appellate court as a whole and considering the circumstances referred to therein, it seems to me that it has been found that there was fraud not only on the part of the D. H. but also on the part of the auction purchaser as well. I shall presently refer to some of the circumstances. It has been found clearly and unequivocally that certain mortgagees practised fraud upon the court. Among the mortgages there are a son and a son-in-law of the auction purchaser. The Corporation of Calcutta was the D. H. and it has been found that some relatives of the auction purchaser are employees of the Calcutta Corporation. There is also a finding that one such relation is a Corporation Councillor. It has been contended, however, on behalf of the auction purchaser, as also on behalf of the Corporation, that there is no positive evidence in support of this finding. In the circumstances I leave out of account that particular finding about one of the relevant persons being a Corporation Councillor. The other findings, however, raise strong suspicion about fraud on the part of the auction purchaser; that suspicion is strengthened by the circumstance, as pointed out by the lower appellate court, that the auction purchaser himself did not choose to come to depose in spite of definite allegations against him. Along with this circumstance may be considered the facts that the property was grossly undervalued as found by the courts below, that it was sold at a grossly inadequate price as found again concurrently by the lower courts, that no notice under R. 66 was served, and that the sale proclamation was suppressed. Along with this circumstance may be considered the facts that the property was grossly undervalued as found by the courts below, that it was sold at a grossly inadequate price as found again concurrently by the lower courts, that no notice under R. 66 was served, and that the sale proclamation was suppressed. It is true that charge of fraud and collusion must be proved by those who make them and must be proved by established facts or inferences legitimately drawn from those facts taken together as a whole, as pointed out by the Privy Council, but as pointed out further by the Judicial Committee in the same case though suspicions and surmise and conjectures are not permissible substitutes for those facts or those inferences, that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can properly be found against him. These observations, in my opinion, are quite pertinent so far as the facts and circumstances of the present case are concerned. If all the circumstances are considered together, the court would be justified in coming to the conclusion that in effect the auction purchaser was at least accessory to the fraud, that is, privy to it, and in my opinion, the judgment of the lower appellate court can be read in that way. In this view of the matter, the decision in the case of Mihirlal v. Panchkari Santo, 54 CWN 637, does not really stand in the way of the applicant Jiaul Huq. 13. It was further urged before me on behalf of the auction purchaser that in coming to its conclusion about the date of knowledge of sale, on the part of Jiaul Huq, one piece of material evidence, namely, V 3, which purports to show that a notice was served upon Jiaul Huq on 22-1-1944, was entirely ignored by the lower appellate court. That notice purports to show that it was served upon one Korban Sheikh who was supposed to be the authorized agent of Jiaul Huq and in this connection my attention has been drawn to an affidavit filed by Korban Sheikh on 1-1-1948. As regards this item of evidence, namely, Ex. V3, I have doubts whether the attention of the lower appellate court was specifically drawn to it. As regards this item of evidence, namely, Ex. V3, I have doubts whether the attention of the lower appellate court was specifically drawn to it. Apart from that, upon the materials on record nothing has been placed before me to show that on 22-1-1944, Korban Sheikh was really an authorised agent of Jiaul Huq, so that a notice received by Korban Sheikh might be accepted as service of notice upon Jiaul Huq. Moreover sitting in exercise of my revisional jurisdiction, I shall be loath to go back upon the express concurrent findings of the lower courts to the effect that Jiaul Huq came to know of the sale for the first time on 26-8-1944. 14. I may mention incidentally that on behalf of Jiaul Huq my attention was drawn to the certified copy of a plaint in a partition suit, namely, Partition Suit No. 45 of 1947. It appears that an application was filed in the lower court for reception of that certified copy as additional evidence, but ultimately no orders were passed upon that application and the document was not taken into consideration by the lower appellate court. In these circumstances, as the document was not received in evidence, whether rightly or wrongly, I do not think that I shall be justified in basing my decision on a consideration of it at this stage. 15. In view of the above findings, the Rule obtained by the auction purchaser, namely, Civil Rule No. 1219 of 1948, must be discharged. 16. I shall take up now Civil Rules Nos. 1330, 1331 and 1332. Civil Rule No. 1331 is by four J. Ds. including two, namely Sarful Hoque and Ahmad Hossain, who have not filed any application under O. XXI, R. 90, Civil P. C. It may be added that another applicant, so far as that Rule is concerned, namely, Mohammadul Haque, filed an application previously under O. XXI, R. 90, Civil P. C. and he lost after a fight upto this Court. Civil Rule No. 1330 is by Jiaul Huq who has filed the present application under O. XXI, R. 90, Civil P. C. for setting aside the sale and Civil Rule 1332 is at the instance of Mohammad Hossain who had filed an application previously under O. XXI, R. 90 Civil P. C. and lost upto this Court. 17. Civil Rule No. 1330 is by Jiaul Huq who has filed the present application under O. XXI, R. 90, Civil P. C. for setting aside the sale and Civil Rule 1332 is at the instance of Mohammad Hossain who had filed an application previously under O. XXI, R. 90 Civil P. C. and lost upto this Court. 17. It will be seen that the applicants so far as these Rules are concerned cover all the J. Ds. including those (three) whose previous applications for setting aside the sale were unsuccessful as also two who have not filed any application at all under O. XXI, R. 90, Civil P. C. for setting aside the sale. It has been urged on behalf of these applicants that in view of the findings that the sale is liable to be set aside on the ground of fraudulent suppression of processes resulting in substantial injury, the entire sale and not only the one-sixth of it has got to be set aside. In this connection reliance has been placed inter alia upon the decisions in the cases of Ramesh Chandra v. Birajasundari 32 CWN 519 and Shila Pal v. Comilla Banking Corporation Ltd., 49 CWN 159, for the propositions, firstly, that a sale cannot be set aside partially, but must be set aside as a whole : secondly, that if a sale is set aside at the instance of one J.D., the other J. Ds. who did not apply are also entitled to have the benefit of the decision of the court in regard to the setting aside of the entire sale; and thirdly, that limitation would not be a bar in such cases. 18. On behalf of the auction purchaser and the D. H. it has been contended that so far as three of the J. Ds. namely, Mohammad Hossain, Samsul Hoque and Mohammdali are concerned, their previous applications under O. XXI, R. 90, Civil P. C. having been dismissed, they at any rate are not entitled to come in now and say that the entire sale should be set aside and that they should be allowed to get any benefit out of the present application filed by Jiaul Huq. In support of this contention reliance was placed upon the case of Amulya Krishna v. Dilip Kumar, 41 CWN 224. In support of this contention reliance was placed upon the case of Amulya Krishna v. Dilip Kumar, 41 CWN 224. The correctness of this ruling was called in question before me by the learned Advocates for the J. Ds. and it was argued that this case was not consistent with the principles laid down in the cases reported in 32 CWN 519 and 49 CWN 159, to which reference has been made. So far as this Court is concerned, it is bound, however, by the decision in the case of Amulya Krishna, 41 CWN 224, which is directly in point. The headnote of that Bench decision may be quoted in this connection : "When after an application under O. XXI, R. 90, Civil P. C., by some of the J. Ds. has been dismissed, a similar application by another J.D. is allowed, the entire sale cannot be set aside, but it will stand confirmed as regards the share and interest of the J. Ds. whose applications have previously failed." 19. It will also appear from the above ruling that in appropriate circumstances it is permissible to set aside a sale in part. Authority for the same proposition is also to be found in the case of Rampada Nag v. Kanai Rai, AIR (13) 1926 Cal 1219, which was a decision by a Division Bench. It will be pertinent to quote the following passage from that decision : "On the main question it is said that the sale cannot be partially set aside. There is ample authority that this can be done", and in this connection reliance was placed upon the decisions in the cases of Khiarajmal v. Daim, 32 IA 23, and Rajagopala Ayyar v. Ramanujachariar, 47 Mad 288. In the case of Ramesh Chandra, 32 CWN 519, however, Suhrawardy, J., who was one of the Judges who decided the case of Rampada Nag v. Kanai Rai, AIR (13) 1926 Cal 1219, explained that decision (p. 524) and came to the conclusion entirely different from the previous decision. It was held in the case of Ramesh Chandra, 32 CWN 519, that under O. XXI, R. 90, Civil P. C. the entire sale could be set aside at the instance of one of several J. Ds. and that O. XXI, R. 90 of the Code does not contemplate the setting aside of a sale partially. It was held in the case of Ramesh Chandra, 32 CWN 519, that under O. XXI, R. 90, Civil P. C. the entire sale could be set aside at the instance of one of several J. Ds. and that O. XXI, R. 90 of the Code does not contemplate the setting aside of a sale partially. It is obvious, therefore, that there is some conflict of judicial opinion as regards the propriety or validity of setting aside a sale partially. To me it appears that generally a sale should be set aside or confirmed in its entirety, but this proposition is subject to certain qualifications, as for instance, the bar of limitation, res judicata etc. So far as the present Rules are concerned, as has been observed before, the applicants Sarful Hoque and Ahammad Hossain have not filed any application at all under O. XXI, R. 90, Civil P. C. As regards their prayer for setting aside the entire sale, the lower appellate court observes : "Unless these two brothers come forward and discharge the initial onus by saying that they had no knowledge before 26-8-1946, their claim cannot be allowed being barred by limitation." 20. It was further observed that they did not say when they had knowledge of the sale, nor do they apply for setting aside the sale. I have some doubts whether without a proper application from them under O. XXI, R. 90, Civil P. C. for setting aside the sale, they can be heard to say that the sale should be set aside in respect of their share as well. Apart from that, it seems to me that the bar of limitation, as pointed out by the lower appellate court, stands very much in their way. In this connection I may mention that my attention was drawn by the learned Advocate for the auction purchaser to Ex. U which purports to show that a notice under O. XXI, R. 66, was served upon Sarful Hoque and Ahammad Hossain. Apart from the question of limitation, it would appear, therefore, that in view of the provisions of proviso (ii) of O. XXI, R. 90, Civil P. C. they are not entitled to come in and to say that the sale in respect of their share of the property should be set aside as well. 21. Apart from the question of limitation, it would appear, therefore, that in view of the provisions of proviso (ii) of O. XXI, R. 90, Civil P. C. they are not entitled to come in and to say that the sale in respect of their share of the property should be set aside as well. 21. In view of these considerations, I am of opinion that the lower appellate court was justified in setting aside the sale only in respect of the one-sixth share of Jiaul Huq and confirming the sale in respect of the remaining five-sixth interest. These Rules must accordingly be discharged. 22. In the result, all the Rules are discharged, but in view of the circumstances, the parties are directed to bear their own share of the costs in all these Rules. Rules discharged.