Das, J.These appeals are directed against the order of the learned Additional Subordinate Judge of Bhagalpur, dated the 20th March 1925 by which he confirmed the orders of the learned Munsif setting aside certain sales both under Order 21, Rule 22, and under Order 21, Rule 90 of the Code. So far as the applications can be read as applications under the provision of Order 21, Rule 90, no appeal lies to this Court; but then the applications were made both u/s 47 and under Order 21, Rule 90 of the Code. It was contended that notices under Order 21, Rule 22 were not served in the cases and that accordingly the sales ought to be set aside under the provision of Section 47 of the Code. The orders upon the question whether notices under Order 21, Rule 22 were or were not served must be regarded as orders u/s 47 of the Code and second appeal lies to this Court. I will therefore only consider the question whether the petitioners are right in saying that notices under Order 21, Rule 22 were not served and whether their application was not barred by limitation. So far as the first question is concerned, it is the concurrent finding of both the Courts that notices under Order 21, Rule 22, were not served and this is a finding of fact which is binding on us in second appeal. We must accordingly hold that notices under Order 21, Rule 22 were not served in these cases. But then a very important question arises. In one of these cases, Miscellaneous Case No. 146 of 1924 which is the subject-matter of Miscellaneous Appeal No. 108 of 1925, the property was sold so far back as the 18th of July 1918 and the application was made beyond three years from the date of the sale. It may be mentioned that although the property was sold on the 18th July 1918 delivery of possession was not taken until the 30th July 1921 and it may be conceded that the application for setting aside the sale was made within 3 years from 30th July 1921.

2. The main ground upon which the Court of first instance decided the issue of limitation in favour of the petitioners was that they were kept from the knowledge of the right to apply for getting aside the sale under the provision of Order 21, Rule 22 by means of fraud. It is material therefore to consider whether the actual findings at which the learned Munsiff has arrived are findings from which an inference of fraud can be raised. I have scrutinized the judgment of the learned Munsif with great care and in my opinion there is no legal finding of fraud in his judgment. For instance in dealing with the question whether the process was served the learned Munsif says as follows:

In none of these cases it appears from the reports that the process-server made a bona fide substantial effort or proper enquiries to find out when and where the judgment-debtor was likely to be found in order to justify their banging up of the process to his door to constitute legal service,

3. And then he says:

That being so and there being oral evidence of the petitioner and his Witnesses Nos. 2, 3 and 4 that to their knowledge never had any process-server served the notices on the judgment-debtor such as are contemplated by the provision of Order 21, Rule 22 or Rule 66 and the reports indicating clearly that the judgment-debtor was undoubtedly never met by them without any real or even perfunctory effort to find him out, the natural inference of suppression of the processes appears to be made out in favour of the applicant In all these cases including Case No. 149.

4. I am unable to agree with the learned Munsiff on the point. There is all the difference in the world between a failure to serve the notices and a deliberate contrivance on the part of a party to suppress the notices. The one is due to negligence carelessness or various other circumstances; the other is the result, as I have said of a deliberate contrivance on the part of a party for his own advantage. In dealing with these cases, I have noticed the case with which the Subordinate Courts arrive at findings of fraud without considering for a moment how serious these findings may be for the parties concerned.

5. All that the judgment of the learned Munsif establishes is that there was negligence or carelessness on the part of the process-server or the identifier. This in my opinion is insufficient as a basis for a finding of fraud. The learned Subordinate Judge on appeal has not gone beyond the findings of the learned Munsif. In my opinion therefore fraud has not been established in these cases. That being so, so far as Miscellaneous Case No. 146 of 1924 is concerned it is clearly barred by limitation. Mr. Naresh Chandra Sinha arguing on behalf of the respondents contends that the right to apply accrued not on the 18th July 1918 when the sale took place but on the 30th July 1921 when the delivery of possession was taken by the decree-holder. I am unable to agree with this contention. The application is in substance an application for setting aside the sale and it is the sale which is the subject-matter of the application and therefore the right to apply dearly accrued to the petitioners on the 18th July 1918. It may be that the petitioners have a grievance against the order for possession; for as Mr. N.C. Sinha points out that the sale being a nullity it was not necessary for them to apply for setting aside that which has no substance in the eye of law. That may be so and it may be that Mr. N.C. Sinhas client may still bring a suit for recovery of possession of the property within twelve years from the date of delivery of possession, but the application for setting aside the sale must be governed by the three years rule and it must fail as, in my opinion fraud has not been established by the petitioners. I would accordingly allow M.A. 108 of 1925 and dismiss Miscellaneous Case No. 146 of 1924 with costs in all the Courts.

6. So far as the other appeals are concerned, it is not disputed that the application for setting aside the sale were made within three years from the date of the sales. That being so clearly the point of limitation must be decided in favour of the respondents and as the findings of fact at which the lower appellate Court has arrived are findings which are binding on us in second appeal, on the question whether notice under Order 21, Rule 22 were in fact served on the respondents, we must dismiss those appeals with costs in all the Courts.

Adami, J.

7. I agree.