B.K. Mukherjea, J.

1. This rule is directed against an appellate order of Mr.Renu Pada Mukherjee, Additional District Judge, 24-Parganas, reversing theorder of the 1st Munsiff at Diamond Harbour, made in a proceeding under O. 21,R. 90, Civil P.C. The material facts are not in controversy and may be statedas follows: The decree-holder opposite party obtained a money-decree against thepetitioner and his cosharers in the Court of the Munsiff at Diamond Harbour andin execution of the decree the property in suit measuring about 56 bighas ofland was put up to sale on 4th February 1946, and it was knocked down to theopposite party No. 1, a third party purchaser for the sum of Rs. 144 only. Thepetitioner filed an application on 6th June 1946 for setting aside the sale ongrounds of fraud and material irregularity in publishing and conducting thesale which resulted in the property being sold at a gross inadequate price. TheMunsiff who heard the case accepted the contention of the petitioner and setaside the sale. It was found inter alia that there had been fraudulentsuppression of all processes including the notices under O. 21. Rr. 54 and 66,Civil P.C., and that by reason of the fraud and other irregularities, theproperty which was worth at least 7000 rupees was sold for the shockinglyinadequate price of Rs. 144. Against this decision, the auction-purchaser tookan appeal to the Court of the District Judge, 24-Parganas, and the appeal washeard by the Additional District Judge who reversed the judgment of the trialJudge and dismissed the application of the petitioner under O. 21, R. 90, CivilP.C. The Lower Appellate Court did not reverse the findings of the Munsiffregarding the fraudulent suppression of sale processes, or the injury sufferedby the judgment-debtor by reason of the fraudulent sale. The application to setaside the sale was dismissed on the sole ground that it was presented more than30 days after the date of sale, and although the decree-holder was guilty offraud, the auction-purchaser who was a stranger not being a party or accessoryto such fraud the provision of S. 18, Limitation Act could not be invoked againsthim. It is against this judgment that the present rule has been obtained.

2. It is clear from the language of O. 21, R. 90, CivilP.C., that for setting aside a sale under that rule on the ground of fraud inpublishing and conducting the sale it is not necessary to prove that theauction purchaser was a party to the fraud. It is also well settled that thefraud contemplated by S. 18, Limitation Act is not confined to fraud committedat the inception of the cause of action but may include fraud committed beforethat date. Where fraud has been committed by the decree-holder in bringing theproperty of the judgment-debtor to sale, the fraud though committed duringexecution proceedings would have a continuing influence and would retain itspower of mischief 30 long as that influence is not ended, and the partyaffected has not clear knowledge of the facts constituting the fraud. Asauthorities for this proposition, reference may be made to the pronouncement ofJudicial Committee in Rahimbhoy v. Charles Agnew, 20 I.A. 1 : (17 Bom. 341P.C.) and to the decision of Division Bench of the Court in Jatindra Mohan v.Brojendra Kumar, : 19 C.W.N. 553 : (A.I.R. 1914 Cal. 728 [LQ/CalHC/1914/82] .)The question now arises as to whether the judgment-debtor even though he hasestablished that he was kept out of the knowledge of sale and consequently ofhis right to have it set aside by reason of the fraud of the decree-holder hasgot further to show to enable him to take advantage of S. 18, Limitation Act,that the auction-purchaser was also a party to the fraud. The point is not freefrom doubt and although there is no decision of a Division Bench of this Courtdirectly binding on me different views have been taken on this point bydifferent Judges sitting singly.

3. In Kedar Hura v. Asutosh Roy, 44 C.L.J. 565 B.B. Ghosh J.took the view that in order to avail one-self of the benefit of S. 18,Limitation Act, in a proceeding under O. 21, R. 90, Civil P.C., it is notnecessary to allege or prove that the auction-purchaser was also guilty offraud. The same view has been taken by Dalai J. of the Allahabad High Court inJagdeo v. Ujiyari : A.I.R. 1928 ALL. 354 [LQ/AllHC/1928/8] : (108 I.C. 899) andby Ross J. of the Patna High Court in Mahabir Ram v. Ram Bahadur,: A.I.R. 1923 Pat. 435 [LQ/PatHC/1923/95] : (72 I.C. 625). On the other hand,the opposite opinion has been expressed by Henderson J. in Jagiswar Das v. DebNarain, : 46 C.W.N. 403 and by Lodge J. in Saila Bala v. AtulKrishna, : 82 C.L.J. 9 : (A.I.R. 1948 Cal. 63) [LQ/CalHC/1946/82] though it maybe noted that in both these cases the applications were under S. 174(3), B.T.Act. The Bench decision of this Court in Purna Chandra v. Anukul, 36 Cal. 654 [LQ/CalHC/1909/156] :(2 I.C. 844) is not an authority in point, as that case arose out of aproceeding under S. 214 of the old Code.

4. Now the third paragraph of S. 18, Limitation Act,provides that:

The time limited for instituting a suit or making anapplication (a) against the person guilty of the fraud or accessory thereto or(b) against any person claiming through him otherwise than in good faith andfor valuable consideration shall be computed from the time when the fraud firstbecame known to the person injuriously affected thereby.

The relief which the appellant claims in a proceeding underO. 21, R. 90, Civil P.C. is for setting aside the sale, and to obtain suchrelief it is enough for him to show that the decree-holder committed fraud orirregularity in publishing and conducting the sale by reason of which hesuffered injury. The auction-purchaser if he is a third party does not come inthe picture at all at this stage and there could be no talk of alleging orproving against him complicity in the fraud or irregularities committed by thedecree-holder. The fraud that can be alleged or proved against him must be afraud subsequent to the sale, but it has been held by a series of decisions ofthis Court as well as of the Privy Council that for invoking the benefit of S.18, Limitation Act it is not necessary to prove fraud subsequent to the sale.If there is any fraud antecedent to the sale, its influence must be deemed tocontinue, till the party affected has clear knowledge of it. Suppose forexample that by fraud of the decree-holder the judgment-debtor is totally keptout of the knowledge of sale and the property has been sold for a nominalprice. The judgment-debtor comes to know of the sale long after the period oflimitation has expired. In such circumstances he would have absolutely noremedy under O. 21, R. 90, Civil P.C. if the auction-purchaser was a thirdparty, who could not normally be a party to the fraud committed by thedecree-holder prior to the sale. I do not think that such was the intention ofthe Legislature. In my opinion, the application for setting aside the sale isdirected primarily against the decree-holder, at whose instance and for whosebenefit the sale is held, and whose duty it is to see that it is published andconducted regularly. Under S. 311 of the old Civil P.C., the auction-purchaserwas not a necessary party to a proceeding to set aside the sale (vide SurendraMohini v. Loharam, : 16 C.W.N. 570: (39 Cal. 687) [LQ/CalHC/1912/77] ). In thepresent Civil Procedure Code, only a general provision has been made in O. 21,R. 92 giving all persons affected a right to be heard on an application made bythe decree-holder or any other person to set aside the sale. The successfulbidder is undoubtedly a person having interest in the sale, but his interest isof an "inchoate character awaiting completion by the grant of the salecertificate". He may lose his bargain if the sale is set aside, but thatis the indirect result of the allowing of the application under O. 21, R. 90,Civil P.C., which is directed primarily against the decree-holder. I think thereforethat S. 18, Limitation Act, can be availed of to extend the period oflimitation of an application under O. 21, R. 90, Civil P.C., where fraud isproved to have been committed by the decree-holder though not by a strangerauction purchaser. The result is that I make the rule absolute, set aside thejudgment of the Additional District Judge and restore that of the Munsiff;there will be no order for costs in this Court, or any of the Courts below.

.

Mahipati Haldar vs. Atul Krishna Maitra and Ors. (02.08.1948- CALHC)