Patna High Court
Ram Pershad Lal And Ors. vs Chamari Singh And Ors. on 30 June, 1922
Equivalent citations: 70IND. CAS.675, AIR 1922 PATNA 422
JUDGMENT Adami, J.
1. This is an application directed against an order pasted by the Munsif at Barh setting aside a sale in execution of a rent-decree under Order XXI, Rules 90 and 92 of the Civil Procedure Code.
2. It appears that the petitioner, Laving obtained a rent-decree, brought the holding to sale on the 16th February 1920, and purchased it himself. The sale was confirmed on the 22nd March, and possession was delivered on the 25th May. Thereafter, the petitioner sold the holding to one Punit, for about double the amount he had paid for it at the auction-sale. The opposite party applied on the nth September 1920 under Order XXI, Rule 90 to have the sale set aside on the ground of material irregularity in the service of notices and in the sale proclamation, and of fraud, He asserted that, by reason of the irregularities and fraud, an altogether inadequate amount had been paid for the holding, and that, owing to want of notice and fraud and his absence from the village by reason of illness, he had no knowledge, of the sale proceedings until the 26th August 1920.
3. The Munsif held that notices had not been, properly issued, that an inadequte value was entered in the sale proclamation, that owing to this a wholly inadequate price had keen paid at the auction, that there had been fraudulent collusion between the decree-holder and judgment-debtor, and that notices had not been issued under Section 158-B to the co-sharer landlords of whom the opposite party was one. He, therefore, set aside the sale, holding that the opposite party's application was within time, since he had been kept out of knowledge of the proceedings by the petitioners until 26th August 1920. The District Judge has upheld the Munsif's findings and dismissed the petitioner's appeal.
4. The opposite party claimed to have purchased part of the holding and to have possession of another portion under a mortgage, the kabala and mortgage-deed having been executed before the suit of the decree-holder.
5. It is contended now before me that an application under Order XXI, Rule 90, to set aside a sale on the ground of fraud can only be made prior to confirmation of the sale, and that, therefore, the Munsif had no jurisdiction to entertain the application of the opposite party.
6. I do not think that this contention can be supported. I have been referred to a decision by Broadway, J., of the Ignore High Court, Bashl Ram v. Hasan Muhammad 51 Ind. Cas. 447 but am not able to follow the reasoning given therein. Where the sale or an irregularity affecting the sale has, by the fraud of the decree-holder or other parties to the sale, teen kept concealed from the judgment-debtor, he is entitled to apply under Rule 90 whether the sale has been, confirmed or not, and. the time for making the application is to be computed from the date when the fraud first became known to him, Mohendro Narain v. Gopal Mondul 17 C. (sic) : 8 Ind. Dec. (N.S.) 1056; Gulam Ahad v. Judhishter Chundra Shaha 30 C. 142 at p. 153 : 7 C.W.N. 305. There is nothing iii Order XXL, Rule 90 which limits the filing of an application to the period prior to confirmation of the sale.
7. It is next contended that, in order to enable the opposite party to plead extension of time for his application to the date of knowledge, he must show that he was kept ignorant through fraud, and that there is no finding that in this case the petitioner, was aware of the opposite party's purchase and mortgage, or that he fraudulently withheld knowledge from him, the case being that the opposite party was away through illness. It has been found, however, that notices at various stages were not served, especially the notice required under Section 158-B, and the whole tenor of the decisions of the lower Courts is, that the petitioner purposely prevented service of notices.
8. The third ground taken is that the opposite party being a pun baser of only a portion of the holding and mortgagee of another portion, the landlord decree-holder was not bound to recognise him, end he had no right to file an application under Order XXI, Rule 90. This point was not taken in the lower Courts and I have not material before me to show whether the kobala and mortgage covered the whole of the holding so as to effect a transfer of the whole.
9. On the findings of the lower Courts, I can see no good ground to interfere. The application is rejected. Hearing fee three gold mohurs.