Ramswaroop Singh v. Ganesh Missir — 1964 DIGILAW 70 (PAT)

Judgment 1. This appeal has been filed by the decree-holders and it is directed against the appellate order dated the 19th June, 1961, passed by the learned District Judge, affirming an order of the learned Additional Subordinate Judge in Miscellaneous Case No. 14/18 of 1954/1956, registered at the instance of the judgment-debtors. As a result of the disposal of the Miscellaneous Case, a sale held on the nth of December 1953, in Title Execution Case No. 3 of 1953 stands set aside. The facts of the case are as follows: 2. The appellants had instituted a partition suit in 1950, numbered as Partition Suit No. 150 of 1950. In the decree passed in that suit, there was a decree for costs, amounting to Rs. 280/6. The holders of the decree for costs levied execution to realise this cost in Title Execution Case No. 3 of 1953. Certain Brit Lakharaj land belonging to the judgment-debtors, measuring 23 bighas 5 kathas 15 dhufs, appertaining to khata Nos. 151 and 155, in village Khokhara was sold and purchased by the decree-holder on the nth December, 1953, for a sum of Rs. 313/14/6. The sale was, however, subject to a zerpeshgi encumbrance of Rs. 9,000/-. The decree-holder themselves were the zerpeshgidars. On the 15th of September 1954, respondent No. 1, Ganesh Missir, one of the judgment-debtors, filed an application under Order 21, Rule 90, Code of Civil Procedure, for setting aside the sale. The judgment-debtors case was that the processes in the execution case had not been served and they Had been fraudulently suppressed, with the result that substantial injury had been caused to the applicant by the sale mentioned above. It was alleged that the judgment-debtor came to know of the sale for the first time from, the Amla of the landlord, to whom the decree-holders purchasers had gone to get their names mutated. It was further alleged in the application that after receiving information about the sale the application came to know about the fraud committed by the decree-holders, on the 17th August 1954, when the records of the execution case were inspected. It may be mentioned at this stage that according to the evidence given by the judgment-debtor, the first knowledge of the pale had been received on the 15th August 1954. It may be mentioned at this stage that according to the evidence given by the judgment-debtor, the first knowledge of the pale had been received on the 15th August 1954. The allegations of the judgment-debtor were controverted by the decree-holders and it was asserted that no fraud had been committed on the judgment-debtors and it was alleged that the- property had been sold for its proper value. It was also contended that the application filed on the I5th of September 1954 was barred by limitation. The learned District Judge has held on the merits of the case that the processes in the execution case had been fraudulently suppressed and the judgment-debtors had been kept out of knowledge? of the execution proceedings throughout. According to the learned Judge, therefore, the decree-holders had managed to have the disputed land sold for a "shockingly low value" from which an inference of fraud may be drawn. Upon the question of limitation raised on behalf of the decree-holders, the question has been decided against them, the learned District Judge holding that the onus was on the decree-holders to prove that the judgment-debtor had acquired definite knowledge of the facts constituting the fraud at a time which was too remote to allow him to make the application to set aside the sale. It has been held that the decree-holders in this case had failed to discharge that onus. 3. Learned counsel for the appellants, has contended that the sale in this case was, at the most, voidable, if the conclusion on merit arrived at by the Courts below cannot be disturbed, and in that case Article 166 of the Limitation Act read with Sec.18 of the Act will be attracted. It is urged that on reading Article 166 with sec. 18 of the Limitation Act, the limitation in this case against the judgment-debtor applicant, must bet held to have begun on the 15th of August 1954, and this application filed on the 15th of September 1954 was barred by one day. It is urged that on reading Article 166 with sec. 18 of the Limitation Act, the limitation in this case against the judgment-debtor applicant, must bet held to have begun on the 15th of August 1954, and this application filed on the 15th of September 1954 was barred by one day. According to the learned counsel, when the learned District Judge was not in a position to accept the judgment-debtors case that he had the record of the case inspected on the 17th of August 1954, thereby coming to know of the fraud said to have been perpetrated by the decree-holders, no other advantage can be taken by the Judgment-debtor of any action subsequent to the 15th August, even if Sec.18 of the Limitation Act is resorted to. Learned counsel has relied on the cases of Ramdhuri Chowdhuri V/s. Deonandhan Prasad Singh, ILR 2 Pat 65 : (AIR 1922 Pat 507) and Bansi Sao V/s. Debi Prasad, AIR 1961 Pat 508 . 4. Having heard learned counsel for the parties on the question of limitation, we are of the opinion that the conclusions of the learned District Judge based on the case of Chandra Bhukhan V/s. Ramdutt Mahto, AIR 1947 Pat 139 are correct and must be affirmed. In our opinion, neither Ramdhuri Chowdhuris case, ILR 2 Pat 65 : (AIR 1922 Pat 507) nor Bansi Saos case, AIR 1961 Pat 508 goes to the extent to which the learned counsel for the appellants has gone, in dealing with Sec.18 of the Limitation Act. In Ramdhuri Chowdhuris case, ILR 2 Pat 65 : (AIR 1922 Pat 507) it was held by their Lordships that Sec.18 of the Limitation Act did not come into operation at all. The application in that case for setting aside the sale was held to be governed by Article 166 of the Limitation Act alone. In dealing with the principles under Sec.18 of the Act, their Lordships merely mentioned that the application in that case was time-barred unless it could be shown that the respondents right to set aside the sale was concealed from him by the fraud of the appellant. It is not possible to import into this observation a conclusion that if the provision of Sec.18 of the Act is attracted, time would begin to run from when the judgment-debtor first became aware of the sale only. It is not possible to import into this observation a conclusion that if the provision of Sec.18 of the Act is attracted, time would begin to run from when the judgment-debtor first became aware of the sale only. Sec.18 of the Limitation Act is clear enough in this context. It states that where a person having a right to make an application has by means of fraud, been kept from the knowledge of such right, the time limit for making an application shall be computed from the time when the fraud first became known to the person injuriously affected thereby. The substance of this section was being incorporated by their Lordships in the conclusions mentioned above. When it was held in Ramdhuri Chowdhuris case, ILR 2 Pat 65 : (AIR 1922 Pat 507) that the provision of Sec.18 of the Limitation Act did not come into operation, there was no occasion for holding that time against the applicant began from the date of the knowledge of the sale alone, apart from the time of the knowledge of the fraud. In our opinion, no assistance can be had by the learned counsel for the appellants upon the point in issue from Ramdhuri Chowdhuris case, ILR 2 Pat 65 : (AIR 1922 Pat 507). 5. Coming to Bansi Saos case, AIR 1961 Pat 508 reliance is strongly placed on the following observations of this court: "It is now well settled by various authorities that, if the sale is merely voidable then an application by the judgment-debtor even under Sec. 47 of the Code has to be filed under Article 166 of the Limitation Act within 30 days from the date of the sale. By alleging fraud of the decree-holder which might have kept him out of knowledge of the sale, he may take advantage of the provisions of Sec.18 of the Limitation Act. But if the sale is void, the application for declaring it so or even for setting it aside -- as a matter of abundant precaution -- can be filed within 3 years under Article 181 of the Limitation Act. This point is also covered by the Supreme Court cases referred to above." Here also, we think that the learned counsel is incorporating in his argument a sentence which is not in the decision of this Court. This point is also covered by the Supreme Court cases referred to above." Here also, we think that the learned counsel is incorporating in his argument a sentence which is not in the decision of this Court. All that was stated in this case was that by alleging fraud of the decree-holder, which might have kept the judgment-debtor out of knowledge of the sale, the latter may take advantage of the provision of sec. 18 of the Limitation Act. In this context it was not said by this Court that if Sec.18 of the Act is attracted, the terminus a quo must be the date of knowledge of the sale, if it is not found that the date of the knowledge of the sale and the date of the knowledge of the fraud coincided. Therefore, in our opinion, the observations of this Court in the paragraph quoted above, do not go as high as has been contended by the learned counsel. It appears to us that the question for determination has been dealt with by this Court as early as in the case of Babu Lal V/s. Rani Parem Kumari, 10 Pat LT 231 : (AIR 1929 Pat 228), wherein this Court stated thus: "When this is once established the case is brought within the decision of Sir Lawrence Jenkins in Narayan Sahu V/s. Damodar Das, 16 Cal W N 894. In the course of his decision the late Chief Justice of the Calcutta High Court said as follows: Fraud, at any rate the class of fraud with which we are here concerned, is a continuing influence and until that influence ends, it retains its power of mischief. And so, it was said in the case to which I have referred that when a man has committed fraud and has got property thereby, it is for him to say that the person injured by the fraud and suing to recover the property has had clear and definite knowledge of those facts which constituted the fraud at a time which is too remote to allow him to bring the suit. The doctrine is stated in this passage with a clearness and precision to which it is impossible to take any objection. The doctrine is stated in this passage with a clearness and precision to which it is impossible to take any objection. There was fraud at the outset and it is for the decree-holder to establish, at what precise point of time the judgment-debtor had clear and definite knowledge of those facts which would entitle her to apply for setting aside the sale." This principle was reiterated by this Court in the case of AIR 1947 Pat 139. It was held thus: "As I have said, the gross under-statement of value cannot be treated as accidental, and accepting this it appears to me that the burden of proof must be laid on the decree-holders auction-purchasers to establish that the person injured by the fraud and seeking to set aside the sale had acquired definite knowledge of the facts constituting the fraud at a time which is too remote to allow him to make the application". According to the learned counsel for the appellants Chandra Bhukhans case, AIR 1947 Pat 139 was not really based on the finding, of this Court quoted above, but on the conclusion that the sale in that case was held to be void and, there fore, three years limitation had applied. We do not think, however, that Chandra Bhukhans case, AIR 1947 Pat 139 was decided only on tha question of three years limitation. In any event, even if the other conclusion was not the ratio decidendi, the decision reported in 10 Pat LT 231 : (AIR 1929 Pat 228) governs this case and is conclusive on the question. In the instant case, it appears from the judgment of the learned District Judge that at one stage an attempt had been made on behalf of the decree- holders to prove that the judgment-debtors had knowledge of the sale and all matters incidental thereto much earlier, on the 5th of August 1954, and that the judgment-debtors had actually filed an objection for mutation, in the serista of the landlord on the 8th of August 1954. But this question was not pressed in the Court of facts and no reliance was placed on this case on behalf of the decree-holders. Therefore, on the footing that sec. But this question was not pressed in the Court of facts and no reliance was placed on this case on behalf of the decree-holders. Therefore, on the footing that sec. 18 of the Limitation Act is attracted the decree-holders have not given any proof of the fact that the petitioner judgment-debtor had acquired knowledge of the facts constituting the fraud perpetrated by the decree-holders, at a time which was too remote to allow him to make the application on the 15th of September 1954. In that view of the matter, it must be held that the question of limitation has been rightly decided by the Courts below. 6 For the reasons given above, it must be held that the appeal is without any merit, and accordingly it is dismissed. But in the circumstances of the case, there would be no order for costs of this Court.