Peerumahamed v. Thankamma Nadachi — 1950 DIGILAW 88 (KER)

Judgment :- 1. The decree holder auction purchaser, is the petitioner. He had obtained a money decree against the 1st defendant. After the death of the 1st defendant his legal representatives were impleaded in execution as additional defendants 2 to 6 of whom the 2nd defendant was the widow and defendants 3 to 6 the children. Defendants 3 to 6 were minors and an order appointing the 2nd defendant as guardian ad litem had been secured. In execution of the decree certain properties of the 1st defendant were sold in court auction on 5.11.1117 i.e. long after the death of the 1st defendant. On 1.10.1118, the 2nd defendant on her behalf and on behalf of her minor sons, defendants 3 to 6, filed a petition to set aside the sale on the ground mainly of fraud. The section of the C.P.C. quoted in the petition was incorrect, but the relief prayed for showed what the real object of the petition was. The execution court dismissed the petition while the lower appellate court allowed the same and set aside the sale. But the judge passed a conditional order as the defendant's advocate had agreed to deposit the auction amount & c, within a specified period. It was directed that if these amounts were deposited within two months of the date of the lower court order the sale will stand cancelled, and if the deposit was not made appeal was to stand dismissed. It is against the order allowing cancellation of the sale that is sought to be revised. 2. The sale was on 5.11.1117 and the petition to set aside the sale was on 1.10.1118. Art. 151 of the Limitation Act allowed only 30 days from the date of sale to file an application to cancel the same. But in this case the 2nd defendant in paragraph 9 of her petition had stated that she was not aware till then of the decree and the steps in execution taken by the decree-holder. All the steps in execution were alleged to have been taken fraudulently and without any bonafides so as to keep her from knowing anything about the proceedings. The aid of S.18 of the Limitation Act was therefore sought for and it was applied by the learned judge. 3. All the steps in execution were alleged to have been taken fraudulently and without any bonafides so as to keep her from knowing anything about the proceedings. The aid of S.18 of the Limitation Act was therefore sought for and it was applied by the learned judge. 3. It has first to be seen whether any fraud was played on the court to keep it unaware of what was really taking place. When the legal representatives of the 1st defendant were sought to be impleaded the widow, 2nd defendant, was proposed as guardian of the minor defendants 3 to 6. Notice of that application was Ext. III and the endorsement was that it was accepted by the 2nd defendant. The 2nd defendant as D.W. 5 had shown that she had not signed it and that it did not contain her signature. The signature appearing against her name in Ext. III is four horizontal straight lines. Exts. V and VI registered documents of 1116, containing her signature had been produced. There her signatures entirely differed from those in Ext. III. The plaintiff secured production of a vakkalath and a petition purporting to have been signed by the 2nd defendant in another case. The 2nd defendant denied to have executed any such vakkalath or signed any petition. Any how the 2nd defendant's alleged signatures in these two records are entirely different from her alleged signature in Ext. III. Ext. IV is another notice sent from the execution side to the 2nd defendant who has alleged to have signed it. There also her signature is as in Ext. III. There is no doubt that the 2nd defendant's signatures in Ext. III and IV were forgeries. The effect of the endorsement that the 2nd defendant had signed Exts. III and IV was that the court was led to believe that the 2nd defendant in her own capacity and as guardian of the minor defendants had no contentions to offer. If the guardian notice had been returned without acceptance, the court would have ordered fresh notice for appointment of another guardian. The court was obliged to proceed with execution because of the false returns. Thus the court was misled by the false returns. That was an act of fraud on court. The 2nd defendant was likewise kept ignorant of the proceedings in execution. The court was obliged to proceed with execution because of the false returns. Thus the court was misled by the false returns. That was an act of fraud on court. The 2nd defendant was likewise kept ignorant of the proceedings in execution. So the 2nd defendant is entitled under S.18 of the Limitation Act to exclude the period during which she was kept ignorant of what took place in this case. 4. In the petition she had stated that she knew of the execution proceedings only on the day she filed the petition on 1.10.1118. While she was examined as D.W. 5, she had stated that her villagers had told her of the sale in Panguni 1118. It was argued that if she knew of the sale in Panguni, the petition to set aside the sale should have been filed in Chithirai as Panguni had 31 days that year. She filed the petition only on 1.10.1118 and the period between this date and any day in Panguni would be more than 30 days. Thus the petition was stated to be barred by limitation. 5. It was true that as D.W. 5 she had stated that some villagers told her about the sale. But she had not been asked any further question about this. It would be probable that she heard about the sale. But she had no information about the decree in execution of which the properties were sold. As was pointed out in Bahmubhoy Hubibbhoy v. Turner (ILR 14 B 408) the knowledge required by S.18 of the Limitation Act is not mere suspicion but it must be knowledge of such a character as will enable the person defrauded to seek his remedy in court. So in order to fix her with knowledge of the execution proceedings and sale, she must know the number and year of the decree, the Court which passed the same and the party who secured the decree. The ruling in Bapu Rao v. Sadhu Bhiva (ILR 47 Bom. So in order to fix her with knowledge of the execution proceedings and sale, she must know the number and year of the decree, the Court which passed the same and the party who secured the decree. The ruling in Bapu Rao v. Sadhu Bhiva (ILR 47 Bom. 485) followed in Sankara Pillai v. Krishna Pillai (XXX T.L.J. 311) had held that in order to show that the applicant had knowledge of the decree it must be presumed that the applicant had knowledge that a particular decree had been passed against her in a particular court in favour of a particular person and for a particular sum and not merely the knowledge that a decree had been passed by some court against her or her predecessor. Though this arose in a case under 0.9 R.13 C.P.C. the principle will apply in all cases where knowledge of a decree or execution proceedings is in question. As D.W. 5 she had sworn that as soon as she heard about the sale she arranged with her son-in-law to look into the matter. The courts were closed then and the Munsiff's Court reopened only on 26th Chithirai 1118. So the son-in-law himself could have got the details only after 26.9.1118. The petition filed on 1.10.1111 would be within time. 6. When by a fraud involving suppression of processes 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. Vide Bhusan Mani Dasi v. Profulla Kristo (ILR 48 Cal. 119) and Pallayya v. Bhimaraju (AIR 1924 Mad. 859). The Calcutta case had even gone further and held that in case of fraudulent suppression of processes & c it is for the party opposing the defrauded party 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 (in that case this question came up for consideration in a regular suit) is barred by limitation. Taking all the facts proved and admitted in this case it can be taken that the 2nd defendant got in Panguny 1118 some vague information regarding the sale and that she was appraised of all the facts after the courts reopened on 26.9.1118. Her petition of 1.10.1118 could not therefore be barred by limitation. Taking all the facts proved and admitted in this case it can be taken that the 2nd defendant got in Panguny 1118 some vague information regarding the sale and that she was appraised of all the facts after the courts reopened on 26.9.1118. Her petition of 1.10.1118 could not therefore be barred by limitation. The order of the lower appellate court is therefore substantially correct. It is confirmed and this petition is dismissed with costs including advocate's fee Rs. 25/-. Petition dismissed.