Shivakant Prasad, J.The petitioners have challenged the Order No. 197 dated April 4, 2014 passed by the Learned Civil Judge (Senior Division), 2nd Court, Paschim Midnapore in J. Miscellaneous Case No. 13 of 1991.

2. Brief facts leading to the instant case is that the suit property originally belonged two brothers namely, Mukteswar Pradhan and Sarbeswar Pradhan. They took loan of Rs. 15,000/- from the Contai Co-operative Bank Ltd. Contai Main Branch by mortgaging the suit property on execution of mortgage karbarnama dated 04.12.1961. Mukteswar Pradhan and Sarbeswar Pradhan did not repay the said loan amount for which Contai Co-operative Bank Ltd. filed a Mortgage Execution Case No. 17 of 1966 on the basis of award of Dispute Case No. 123/C of Contai 1964-65 passed by ARCS against the father of the petitioners and Sarbeswar Pradhan. On receipt of the said notice, they appeared on 17.4.1967 and prayed for time for one month to pay the award amount dues but the learned Court rejected the prayer and date fixed for confirmation of sale on 19.5.1967.

3. Thereafter, on 18.5.1967 Mukteswar Pradhan and Sarbeswar Pradhan filed an application under Order 21 Rule 90 for setting aside the sale dated 17.4.1967 in Mortgage Execution Case No. 17 of 1966 which was registered as J. Misc. case No. 36 of 1967 and also filed a stay petition to stay the Mortgage Execution Case No. 17 of 1966 till disposal of J. Misc. Case No. 36 of 1967. The learned Trial Judge allowed the prayer for stay of the Mortgage Execution Case No. 17 of 1966 till disposal of J. Misc. Case No. 36 of 1967. Thereafter, said J. Misc. Case No. 36 of 1967 was disposed of on the basis of solenama filed by the parties who failed to repay the award money in terms of the solenama. So, the learned Court confirmed the sale in Mortgage Execution No. 17 of 1966 in presence of both parties on 06.01.1968 and delivery of possession was duly executed on 11.11.1971.

4. Sarbeswar Pradhan purchased the suit property from the Contai Co-operative Bank by way of two registered sale deeds dated 27.02.1980 and mutated his name in the record of right in respect of the purchased property of Mouza-Kumarpur under Contai Police Station and while in possession he transferred the same to his elder daughter Smt. Bibi Rani Jana, petitioner No. 4 by a registered sale deed dated 24.5.1985 and registered gift deed dated 24.5.1985 and her name was mutated in the record of right.

5. After, death of Sarbeswar Pradhan on 23.12.1987, the petitioners field two suits being Title Suit No. 381 of 1990 and Title Suit No. 382 of 1990 in the First Court of Munsif at Contai against Mukteswar Pradhan and other sons. Having received the summons in the said suits, said Mukteswar filed an application under Order 21 Rule 90 of the Code of Civil Procedure which was registered as J. Misc. Case No. 13 of 1991.before the learned 2nd Court of Assistant District Judge, Midnapore against the present petitioners, Contai Co-operative Bank and others, praying for setting aside sale in auction held on 17.4.1967 in Mortgage Execution case No. 17 of 1966 on the ground of irregularity or fraud in publishing and conducting of the auction sale contending that he did not enter into solenama and did not receive any notice of the case.

6. That the opposite parties No. 4, 7,8, 9 and 10/present petitioners filed an application dated 06.7.2013 raising the maintainability point of the application under Order 21 Rule 90 of the Code of Civil Procedure on the grounds, inter-alia that the Learned Trial Court failed to consider the provision of law of Limitation as well as Civil Procedure Code for deciding application filed by the opposite parties No. 4, 7, 8, 9 and 10/petitioners and failed to consider the scope of the provision under Order 21 Rule 90 of the Civil Procedure Code.

7. The present petitioners being the opposite parties Nos. 4, 7, 8, 9 and 10 of J. Misc. Case No. 13 of 1991 by filing an application dated 06.7.2013 raised the ground of maintainability of the application under Order 21 Rule 90 of the Code of Civil Procedure filed by the petitioners/opposite parties of J. Misc. Case and Learned Civil Judge (Senior Division), 2nd Court, Paschim Midnapore rejected the application by the order impugned.

8. On being aggrieved by and dissatisfied with the said order, the instant revision has been preferred contending that the order impugned is not tenable in law and in fact. The Learned Judge has failed to consider the orders passed earlier in the proceeding and the connected proceeding. It is urged by the Learned Counsel for the petitioners that the Learned Judge has failed to consider the provisions of law of limitation as well as CPC and thereby erred in law and in fact by passing the impugned order illegally with material irregularity and that once the sale has been confirmed, the Judgment Debtor cannot be granted any relief under the provision of Order 21 Rule 90 of the Code of Civil Procedure because the suit property was sold in execution on 17.4.1967 which was confirmed on 11.11.1971.

9. The Learned Counsel for the present petitioners has invited my attention to order dated 26.1.1988 passed in Mortgage Execution Case No. 17 of 1966 wherefrom it is revealed that after hearing learned Advocates of both the parties, the then Learned Sub-Judge was pleased to confirm the sale by disposing the execution case on part satisfaction as the Judgment Debtor had not paid the deposit money in terms of solenama.

10. The Order No. 8 dated 18.5.1967 reveals that Mukteswar Pradhan and others filed an application under Order 21 Rule 90 of the Code of Civil Procedure which was registered as J. Misc. Case No. 36 of 1967 in the Court of 2nd Assistant District Judge, Midnapore, with a prayer for staying order of confirmation of sale till the disposal of J. Misc. Case No. 36 of 1967.

11. In this context, two questions have been raised on behalf of the petitioners -

"(I) whether the objector/opposite parties Nos. 1 to 10 will get benefit of Section 17 of the Limitation Act, 1963 in view of the fact that the application under Order 21 Rule 90 of the Code of Civil Procedure was filed by the opposite parties Nos. 1 to 10 for setting aside of sale on 17.4.1967, duly confirmed on 06.01.1968 after 23 years have elapsed.

(II) whether such an application under Order 21 Rule 90 of the Code of Civil Procedure on the ground of fraud is barred by law of limitation."

12. It is urged that provisions of Section 17 of the Limitation Act applies to an application for which a period of limitation is prescribed by the Act. Article 127 of the Limitation Act provided that to set aside a sale in execution of a decree, including any such application by a judgment-debtor, period of limitation prescribed is sixty days from the date of sale.

13. It is further argued that if any such application by the judgment-debtor includes the application under Order 21 Rule 90 of the Code of Civil Procedure on the ground of fraud then, the time fixed is sixty days from the date of sale held on 06.01.1968 and that the provisions of Article 127 of Limitation Act becomes specific regarding the time of limitation on the ground of fraud. No further exclusion under Section 17 of the Limitation Act would be available. In other words, if Article 127 of the said Act specifically prescribed limitation of sixty days for setting aside sale on the ground of fraud under Section 17 of the Limitation Act then it cannot be invoked again for fraud because Article 127 of the Limitation Act applies specifically to an application for setting aside of abetment on the ground of fraud.

14. If it is assumed that there is no period of limitation prescribed for an application for setting aside of abatement on the ground of fraud then the wording of the said Section does not apply to the application for which no limitation is prescribed.

15. Yet, another question has been raised by the Learned Counsel for the petitioners as to whether the Courts sale in favour of the Contai Co-operative Bank dated 17.4.1967 as confirmed on 06.01.1968 and disputes raised concerning the sale are affairs of the Co-operative Society (Contai Co-operative Bank) if it is an affairs of the Co-operative societies the application under Order 21 Rule 90 of the Code of Civil Procedure for setting aside of sale is barred under Provision of Section 102(4) of the Co-operative Societies Act 2006.

16. With the above contention, the Learned Counsel for the petitioners has pointed out that the Learned Judge ought to have dismissed the J. Misc. Case on the threshold on the point of maintainability instead of rejecting the application on the maintainability point dated 06.7.2013 by fixing the preemptory hearing of the J. Misc. Case.

17. Per contra, Learned Counsel for the opposite parties has pointed out the background of the case that the predecessor of the parties of the case namely Mukteswar Pradhan and Sarbeswar Pradhan had taken loan from Contai Cooperative Bank Ltd. Mortgage Case was started against the two brothers on failure to liquidate the loan and that the Mukteswar Pradhan was not in the knowledge of the case started by Contai Co-operative Bank Ltd. in which proceeding the property in question was sold in auction in 1967, the Bank purchased the property and the sale was confirmed, thereafter, Sarbeswar Pradhan purchased in the year 1970. It is further pointed out that in the application under Order 21 Rule 90 of the Code of Civil Procedure, averments explaining the date of knowledge about the sale has been made in paragraph-7 to this effect that for the first time the present opposite parties had acquired the knowledge on 05.7.1991 about the Mortgage Case being No. 17 of 1966 after inspection of the record. Therefore, the question of maintainability of the case under Order 21 Rule 90 of the Code of Civil Procedure cannot be taken at this stage without the evidence as the issue of limitation is to be decided on law as well as on fact. The date of knowledge is a fact to be decided in accordance with the evidence to be adduced by the parties to the case and it cannot be gone into as a preliminary issue under the provisions of Order 14(2) of CPC.

18. To fortify his argument the Learned Counsel for the opposite parties has referred to a decision of Nakul Chandra Dutta Vs. Ajit Kumar Chakrabarty and Others, AIR 1982 Cal 564 [LQ/CalHC/1982/111] : (1982) 1 CALLT 138 : (1982) 2 CHN 54 [LQ/CalHC/1982/111] : 86 CWN 866 [LQ/CalHC/1982/111] : adverting to paragraph-8 of the cited decision wherein it has been observed thus,

"the recital of facts in the application for setting aside of sale was filed more than 8 years after the sale actually took place. The material question for our consideration, therefore, is whether the petitioner had knowledge of the execution proceedings and whether he was kept out from such knowledge by reason of fraud practised by the decree-holder. If fraud is proved the applicant is entitled to the benefit of Section 17, that is to say, the period of limitation in that case would run from the date when the fraud first became known to the applicant. The initial onus is on the applicant to show that he had no knowledge of the same until within 30 days of the application........." "in the case of an application to set aside a sale on the ground of fraud, under Order 21 Rule 90 of the Code limitation runs not from the date when the applicant has some hearsay knowledge of the factum of sale, but when he has a clear and definite knowledge of the facts constituting the fraud."

19. Learned Counsel also refers to a decision of Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, AIR 2006 SC 3672 [LQ/SC/2006/583] : (2006) 132 CompCas 479 [LQ/SC/2006/583] : (2006) 5 CompLJ 203 [LQ/SC/2006/583] : (2006) 6 JT 253 : (2006) 7 SCALE 62 [LQ/SC/2006/583] : (2006) 5 SCC 638 [LQ/SC/2006/583] : (2006) 69 SCL 211 [LQ/SC/2006/583] : (2006) 3 SCR 414 Supp : (2006) AIRSCW 3768 : (2006) 6 Supreme 44 adverting Paragraph 13 of the cited decision which is reproduced hereunder for the convenience in understanding the case:--

"13. Sub-rule (2) of the Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon and it was held as under: (SCR p. 421).

"Under Order 14 Rule 2, Code of Civil Procedure where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit."

Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the abovequoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of facts, it cannot be tried as a preliminary issue."

20. It is observed in Paragraph 19 of the cited decision as under -

"A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan, J.) in Balasaria Construction (P) Ltd. V. Hanuman Seva Trust it was held : (SCC p. 661, para 8).

"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."

21. I have respectfully gone through the decisions which in my humble opinion are apposite to the facts and circumstances of the instant case. Although, at this stage this Court is not of the consideration as to whether the material placed before the Court are sufficient for setting aside the sale is a matter in issue for decision before the Learned Trial Court, nevertheless, on bare reading of the order impugned, this Court finds that the Learned Judge has rightly observed that the petitioners of Title Suit No. 13 of 1991 have alleged fraud and suppression of notice in the Mortgage Execution case which fact cannot be decided without recording evidence and was of the opinion rightly that the case cannot be dismissed at this stage on the ground of the same being barred by limitation.

22. In the context above, having given an anxious consideration to the facts and circumstances of the case, the clenched possession of law, this Court is of the opinion and hold accordingly that there is no illegality and material irregularity in the impugned order.

23. Be that as it may, issue as to limitation shall remain open for decision at the final stage of the trial.

24. Ergo, the revisional application fails and is hereby dismissed without any order as to costs.

25. Urgent certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.