Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: JNANADA SUNDARI NANDI VS Respondent: NARAYAN CHANDRA SARDAR
P L D 1957 Dacca 198
P L D 1957 Dacca 198
Before Chakraborti, J
JNANADA SUNDARI NANDI‑---Appellant
versus
NARAYAN CHANDRA SARDAR and others ----Respondents
Appeal, decided on 20th June 1955, from Appellate Order No. 42 of 1954 (being converted from Civil Revision No. 714 of 1955), against the order of Khalilur Rahman Khan, Subordi nate Judge, Khulna, dated the 6th May 1954, reversing the order of M. R. Khan, Munsif, 3rd Court, Khulna, dated 15th August 1953, in Miscellaneous Case No. 4 of 1951.
(a) Civil Procedure Code (V of 1908), Ss. 47 & 115, O. XXI, rr. 22, 72 & 90‑Interpretation and application of,
Where a decree‑holder without leave of the Court buys the property of the judgment‑debtor at a Court sale, the remedy of the latter is by application under section 47 and Order XXI, rule 72 of the Civil Procedure Code and not by a separate suit; a separate suit is barred under section 47.
The words illegally and with material irregularity in clause (c) of section 115, Civil P. C., do not refer to the conclusion or finding itself arrived at, but to the manner in which the decision is reached. In other words if the Court though clearly possessed of jurisdiction violates, disregards or over looks any law or procedure prescribing the mode in which the jurisdiction is to be exercised it acts illegally and with material irregularity in the exercise of its jurisdiction.
N. S. Venkatagiri Ayyangar v. The Hindu Religious Endow ment Board, Madras P L D 1949 P C 26 ref.
Where a Rule was obtained on a petition under sec tion 115, Civil P. C. and the petition under the said section was held to be misconceived, moreover it was contended that the application under section 115, Civil P. C. should be treated as a memorandum of second appeal.
Held, that there being no question of limitation or Court fees, the petition on which the Rule was granted could be treated as a memorandum of appeal.
Arjun Das v. Gunendra Nath Basu Mallick 20 C L J 341 ref.
Where the decree‑holder makes a purchase without the permission of the Court the sale is not absolutely void but only void-able.
(b) Limitation Act (IX of 1908), S. 18, Arts. 166 & 181 Interpretation and application.
Article 181 of the Limitation Act provides limitation for three years in the case of an application for which no period of limitation is provided elsewhere in the schedule or by section 48 of the Civil P. C. Article 166 provides limitation for 30 days under the Civil P. C. to set aside the sale in execu tion of a decree including any application by a judgment-debtor, and the limitation runs from the date of the sale. The wordings "including any such application by a judgment debtor" were inserted by the Limitation (Amendment) Act, 1927, which came into force on the 1st January 1928. The amendment of Article 166 made it clear that it applies also to application by a judgment‑debtor where judgment‑debtor himself applied for setting aside the sale under section 47 of the Civil P. C. But if the execution is a nullity, namely, made without jurisdiction or is void ab initio, Article 166 has no application and Article 181 would come in.
For invoking the benefit of section 18, Limitation Act to extend the period of limitation of an application under Order XXI, rule 90 of the Civil P. C., 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 to continue, till the party affected has clear knowledge of it.
Haripada Halder v. Barada Prasad Roy Choudhury and others I L R 51 Cal. 1014; Chand Moni Dasya v. Santo Mon! Dasya 1 C W N 534; Chandrana Rai v. Maharaja of Dumraon 38 Ind. Cas. 209, Ramsagor Singh v. Ramajodya Matho I L R 21 Pat. 774; Nirode Kali Roy Chaudhry and another v. Rai Harendra Nath Chaudhry and another 42 C W N 87, Bhaichand Kirparam and another v. Ranchhoddas Manchha Ram and others I L R 45 Bom. 174; Umapati Mukherjee v. Sheikh Soleman I L R 54 Cal. 419; Manmatha Nath Ghose v. Lachmi Debi I L R 55 Cal. 96; Rajibnath v. Chota Nagpur B. Association, Ltd. I L R 27 Pat. 399, Mahipati Haldar v. Atul Krishna Motira and others 53 C W N 587; Mahirlal Dig v. Panchkari Santra and others 54 C W N 697; Narayan Sahu and others v. Mohanth Damodar Das 16 C W N 894; Arjun Das v. Gunendra Nath Basu Mallick 18 C W N 1266; Jatindra Mohan Rai Chaudhuri v. Brojendra Kumar Datta Munshi 19 C W N 533; Ramesh Chandra Patranabis v. Birajasundari Gupta 32 C W N 519; Bhusan Mani Dasi v. Profulla Kristo Deb I L R 48 Cal. 119; Biman Chandra Dutta v. Promotha Nath Ghose I L R 49 Cal. 877 and Rahimbhoy Habibbhoy v. Turner I L R 17 Bom. 431 ref.
Sris Chandra Dutta for Petitioner.
Priyanath Bhattacharjee for Opposite‑Parties.
B. N. Roy Choudhury for Deputy Registrar.
JUDGMENT
CHAKKABORTI, J.‑---This Rule is directed against an order of the Subordinate Judge, Khulna, setting aside the sale in Rent Execution Case No. 477 of 1948 in Miscellaneous Appeal No. 124 of 1953.
The decree in question was obtained on the 18th Septem ber 1936. It was executed in Rent Execution Case No. 477 of 1948, filed on the 27th July 1948. The execution was according to the provisions of Civil P. C. The sale took place on the 6th August 1950, and it was confirmed on the 7th September 1950. On the application of the decree‑holder auction purchaser writ of possession was issued on the 20th December 1950, fixing the 29th January 1951, for return and order. In the meantime on the 8th January 1951, the judgment‑debtors applied for setting aside the sale under Order XXI, rule 72, Civil P. C., Order XXI, rule 90, Civil P. C., and also under section 47, Civil P. C.
The learned Munsif by his judgment, dated the 15th August 1953, found that the notice under Order XXI, rule 22, had not been served upon the applicants. Further there was no service of sale proclamation and again the decree‑holder opposite party assessed the value of the land at Rs. 50 to 55 per bigha although according to the learned Munsif the value of the land was Rs. 250 per bigha. The learned Munsif accordingly held that the land had been sold at an absurdly low price. The case of the judgment‑debtors petitioners was that they were fraudulently kept out of knowledge of the sale and for the first time they came to know about the fraud and the sale on the 27th December 1952, and they were entitled to the benefit under section 18 of the Limitation Act. They filed ti‑:ir application on the 8th January 1953, which was registered on the same day. The learned Munsif found that on the evidence be was of opinion that "the applicant had failed to prove the existence of fraud and their lack of knowledge till they were informed by one Abinash and one Rahim" which might entitle them to have the benefit of section 18 of the Limitation Act, and on that finding he dismissed the application for setting aside the sale filed by the judgment‑debtors.
An appeal was preferred against that order before the District Judge and learned Subordinate Judge who heard this appeal came to the finding that the processes were sup pressed and the suppression was made fraudulently and there was material irregularity and fraud in publishing and conduct ing the sale and that the petitioner was entitled to relief under section 18 of the Limitation Act. In that view of the matter the lower appellate Court allowed the application for setting aside the sale. Against that order of the learned Subordinate Judge the present Rule was obtained from this Court.
An objection was taken on behalf of the opposite parties that an application under section 115, Civil P. C., in the circumstances of the case was incompetent. Section 115, Civil P. C., lays down:‑
"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit." There is no question here under clauses (a) and (b). The only question is whether the case comes under clause (c), namely, whether the Subordinate Judge acted in the exercise of his jurisdiction illegally or with material irregularity.
Now in this case, there was an application by the judgment‑debtor not only under Order XXI, rule 90, Civil P. C. but also an application under Order XXI, rule 72, Civil P. C. Admittedly there was no prayer for permission to bid at the sale and no permission was granted in Mulla's Civil P. C. 12th edition, Volume 2, page 877, it is stated:‑
"Where a decree‑holder without leave of the Court buys the property of the judgment‑debtor at a Court sale, the remedy of the letter is by application under this rule and section 47, and not by a separate suit; a separate suit is barred under section 47. The question whether the sale should be set aside or not is a question between the parties to the suit relating to the execution of the decree within the meaning of section 47, and it must, therefore, be decided by the Court executing the decree, and not by a separate suit.
So, essentially this being a question under section 47 it is conceded by the learned Advocates appearing for both sides that a second appeal lies. The contention of the learned Advocate for the petitioner that the case comes under clause (c) of section 115, Civil P. C. is not very sound and cannot be accepted.
The words illegally and with materially irregularity in clause (c) do not refer to the conclusion or finding itself in which the decision is arrived at, but to the mare ached. In order words if the Court though clearly possessed of jurisdiction violates, disregards or overlooks any law or procedure prescribing the mode in which the jurisdiction is to be exercised it acts illegally and with material irregularity in the exercise of its jurisdiction. Now this principle has been laid down in the Privy Council case of N. S. Venkatagiri Ayyangar v. The Hindu Religious Endowment Board, Madras (53 C W N 458).
Mr. Sris Chandra Dutta appearing for the petitioner at last conceded before the Court that the application under section 115, Civil P. C. was misconceived and he took his stand that the application should be treated as a memo randum of second appeal as there was no question of Court fees and limitation in this case, and as the matter involved a question under section 47, Civil P. C. In this connection he relied on the case of Arjun Das v. Gunendra Nath Basu Malik (20 C L J 341), where their Lordships Mookerjee and Beachcroft, JJ. treated the petition on which a rule was issued, as a memorandum of appeal when there was no question of limitation or Court‑fees. This is not challenged on behalf of the opposite parties. Admittedly there is no question of limitation and Court‑fees and accordingly the petition only which the rule was granted was treated as a memorandum of appeal.
The learned Advocate appearing for the petitioner has raised two points before this Court. He has, firstly, con tended that the learned Subordinate Judge is clearly in error in holding that the case is governed by section 181 of the Limitation Act, and the proper Article applicable to this case should be Article 166 of his Limitation Act. His second contention is that the finding of the learned Subordinate Judge that the case comes under section 18 of the Limitation Act is not sufficient.
Mr. Bhattacharjee for the respondents, however, con tends that this is a case covered by section 181 of the Limitation Act and there was a clear finding on the facts that the judgment‑debtors were quite entitled to get the benefit of section 181 of the Limitation Act.
Article 181 of the Limitation Act provides limitation for three years in case of application for which no period of limitation is provided elsewhere in the schedule or by section 48, Civil P. C., 1908. Article 166 provides limitation) for 30 days under the Civil P. C. to set aside the sale in execution of a decree including any application by a judg ment‑debtor and the limitation runs from the date of the sale. The wordings "including any such application by judgment‑debtor" were inserted by the Indian Limitation (Amendment) Act, 1927, which came into force on the 1st January 1928. The amendment of Article 166 by the Act of 1927 gave effect to the recommendation of the Civil Justice Committee that Article 166 should be amended so as to make it clear that it applies also to application by a judgment‑debtor where judgment‑debtor himself applies for setting aside the sale under section 47, Civil P. C. But evidently, if the execution sale was a nullity, namely, mad without jurisdiction or is void ab initio Article 166 has no application and Article 181 would come in. Now this as principle of law has been accepted in different High Courts, I shall refer in this connection the decision in the case of Haripada Haider v. Barada Prasad Roy Choudhury and others (I L R 51 Cal. 1014). In this case Pearson and Graham, JJ. held "all application whether under section 47 or Order XXI, rule 90, Code of Civil Procedure, are governed by 30 days period of limitation provided by Article 166 of the 1st Schedule of the Limitation Act, 1908. Article 166 of the 1st schedule of the present Limitation Act is so much wider than the corres ponding provisions of the former Act and is quite general in terms governing all applications to have an execution sale set aside."
Their Lordships in that case distinguished the cases of Chand Moni Dasya v. Santo Moni Dasya (1 C W N 534) and Chandrana Rai v. Maharaja of Dumraon (38 Ind. Cas 209). It was decided in those cases that under the Act as it formerly stood before the passing of the present Limitation Act, Article 166 was restricted to a particular class of applications. In the case of Ramsagor Singh v. Ramajcdhya Matho (I L R 21 Pat. 774), there was a sale in execution of a decree for payment of money. The objection of the judgment debtor was that he was an agriculturist and by means of the provisions contained in section 60 (c) of the Civil P. C., 1908, a house which had been attached was not liable to be sold. Their Lordships Mr. Justice Meredith and Mr. Justice Shearer held: "That although the question that arose between the parties might be one falling within the purview of section 47 of the Code of Civil Procedure, 1908, the application was one to have the sale set aside, and, that being so Article 166 of the Limitation Act, 1908, was necessarily applicable". In the case of Nirode Kali Roy Choudhury and another v. Rai Harendra Nath Chaudhury and another (42 C W N 87), Nasim Ali and Mukherjee, JJ. were also of opinion that Article 166 of the Limitation Act applies to applications for setting aside sales when the sale is void-able and not void. The same principle was also accepted in the case of Bhaichand Kirparom and another v. Ranchhoddas Manchharam and others (I L R 45 Bom. 174). At page 187 his Lordship Shah observed: "I am therefore, of opinion that the present suit must be treated as an application under section 47 to set aside a sale and that it is barred under Article 166, because it has not been made within 30 days from the date of the sale."
Order XXI, rule 72, clause (3), Civil P. C. lays down: "that where a decree‑holder purchases himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment‑debtor or any other persons whose interests are affected by the sale; by order set aside the sale; and the costs of such applica tion and order, and any deficiency of price which may happen on the re‑sale and all expenses attending it, shall be paid by the decree‑holder". It follows, therefore, that where the decree‑holder makes a purchase without the permission of the Court the sale is not absolutely void but only void-able. The learned Advocate for the respondent relies on the follow ing cases.
Umapati Mukherjee v. Sheikh Soleman (I L R 54 Ca1. 419), Manmatha Nath Ghose v. Lachmi Debi (I L R 55 Ca1. 96) and Rajibnath v. Chota Nagpur B. Association, Ltd. (I L R 27 Pat. 399).
Now in the case Umapati Mukherjee v. Sheikh Soleman, Duval and Miter, JJ. held:‑
"The title of a purchaser in execution of a mortgage decree can be questioned only by a petition in the execu tion proceedings under section 47 of the Code of Civil Procedure.
The Article applicable for application under section 47 of the Code of Civil Procedure is Article 181 of schedule 1 of the Indian Limitation Act, which gives three years from the date when the right to apply accrues. The right to apply accrues at the date of the sale."
This was a case, which was decided before the amendment of the Limitation Act and related to a mortgage sale. There was a question whether the disputed lands were or were not included in the mortgage decree or sale. The plaintiff's case was that plot No. 2 of the plaint lands belonged to the widow of Milan and that the other plots of the plaint were not covered by the mortgage executed by the sons of Milan in favour of the father of defendant No. 1 and were in possession or the plaintiffs even after delivery of possession to defendant No. 1. But defendants Nos. 2 to 4 forcibly took possession of them alleging that they took settlement of them from defendant No. 1. The defence of the defendants was that the disputed lands were mortgaged by the sons of Milan Sheikh and were sold in execution of the mortgage decree and purchased by defendant No. 1. Defendants denied the title of the widow and daughter of Milan Sheikh in plots Nos. 1 and 3 and they alleged that the sons of Milan got the disputed lands (plots Nos. 1, 2 and 3) on partition and the widow and daughters of Milan got other lands. The Munsif held that plots Nos. 1 and 3 did not belong to the widow and daughters of Milan and further held that the disputed lands were not included in the mort gage executed by the sons of Milan, who were plaintiffs Nos.1 to 3 in this suit and respondents before the High Court. The defendants preferred an appeal to the District Judge who confirmed the decision of the Munsif holding that the lands decreed were outside the mortgage. So, from the facts it appears that that was altogether a different case and the facts are clearly distinguishable from the present one. This case has no application to the present case.
The case reported in Manmatha Nath Ghose v. Lachmi Debi mentioned above, has also no application to the facts .of the pre sent case, as that was a case where the sale was held void and it was not necessary to have the sale set aside under section 47, Civil P. C. In the special circumstances residuary Art. 181 of the Limitation Act was applied to such cases and not Article 166. The next case relied on by the learned Advocate for the respondents, is the case of Rajibnath v. Chota Nagpur B. Association, Ltd. mentioned above. The facts of that case are also quite distinguishable from the facts of the present case. In that case also the question was whether a raiyati holding was or was not liable to be sold on account of statutory prohibition and the suit was for recovery of possession on the ground that the sale was void and did not pass any title to the auction‑purchaser. So, it appears on the wordings of the Article 166 as amended by Act of 1927, that Article 166 and not Article 181 is applicable to the facts of the present case. The learned Subordinate Judge was clearly wrong in finding that Article 181 of the Limitation Act applied to the facts of the present case.
The learned advocate for the respondents next contended that even if Article 166 was applicable here, the position of his clients was saved by section 18 of the Limitation Act. The sale was held on the 7th August 1950, and the petitioners got the information regarding the fraudulent sale on the 27th December 1950 and the application for setting aside the sale was filed on 8th January 1951. The learn Advocate for the appellant, contends that the finding of a Subordinate Judge regarding the application of section 18 of the Limitation Act is not sufficient. Further it is incumbent on the judgment debtors to prove that there was a fraud subsequent to the sale and that the judgment‑debtors were kept out of the knowledge of the date of the sale on account of the fraud of the decree‑holder. In this connection the learned Advocate for the appellant has relied on the case of Mahipati Haldar v. Atul Krishna Moitra and others (53 C W N 587). In this case Mukherjee, J. held:
"Section 18 of the Limitation Act can be availed of to extend the period of limitation of an application under Order XXI, Rule 90 of the Civil Procedure Code, where fraud is proved to have been committed by the decree‑holder though the auction‑purchaser, who was a stranger, was not a party or accessory to the fraud.
"The fraud that can be alleged or proved against an auction‑purchaser must be a fraud subsequent to the sale, but, as has been held, for invoking the benefit of section 18 of the Limitation Act, it is necessary to prove fraud, subsequent to the sale."
It is clear that this case does not at all help the learned Advocate for the appellant. That was a case of auction purchase by a third party and necessarily his Lordships, held that the fraud that can be alleged or proved against him must be a fraud subsequent to the ale. His Lordship, however, observed at page 589:
"But it has been held by a series of decisions of this Court as well as of the Privy Council that for invoking the benefit of section 18, Limitation Act, it is not necessary to prove fraud subsequent to the sale. If there is any P fraud antecedent to the sale, its influence must be deemed to continue, till the party affected has clear knowledge of it."
This is exactly the contention of the learned Advocate for the respondents. The other case cited by the learned Advocate for the appellant is the case of Mihirlal alias Mihirlal Dig v. Panchkari Santra and others (54 C W N 697). This is also a case where the auction‑purchaser was a third party. Their Lordships Das and Das Gupta, JJ. held:
On a proper interpretation of the unambiguous language of section 18 of the Indian Limitation Act, the judgment debtor is without any remedy in the cases where, by the fraud of the decree‑holder, the judgment‑debtor is totally kept out of knowledge of the sale and the property has been sold for a nominal price, but the auction‑purchaser is not a party to the fraud or accessory thereto.
The learned Advocate for the respondents cited several decisions which clearly support his contention that in suitable cases fraud antecedent to the sale may be taken into consideration and its inference continues till the judgment debtor is aware of the fraud in the sale. The case cited are the cases of
Narayan Sahu and others v. Mohanth Damodar Das (16 C W N 894), Arjun Das v. Junendra Nath Basu Malick (18 C W N 1266), Jatindra Mohan Rai Chaudhari v. Brjendra Kumar Dutta Munshi (19 C W N 533), Ramesh Chandra Patranabis v. Bir jasundari Gupta (32 C W N 518), Bhusan Mani Dasi v. Profulla Kristo Deb (I L R 48 Cal. 119) and Birman Chandra Dutta v. Promotha Nath Ghose (I L R 49 Cal. 877).
In the present case there is a clear finding by the learned Munsif that no notice under Order XXI, Rule 22, Civil P. C., was served and the sale proclamation was suppressed and further the decree‑holder grossly understated the value of the properties in question and that the land has been sold at an absurdly low price. The judgment‑debtors' story is that that on account of the fraudulent suppression of the notice and sale proclamation they were kept out of any knowledge regarding the sale. It was only on the 27th December 1950, when they first came to know about the fraud and the sale from one Abinash and one Rahim. These two persons, namely, Abinash and Rahim were not examined by the judgment‑debtors and in their absence the learned Munsif declined to believe the uncorroborated evidence of the judgment‑debtors which was not, according to him, sufficient to enable the judgment‑debtors to get the benefit of section 18 of the Limitation Act.
The appellate Court, however, came to a finding that it was in evidence that the processes were fraudulently suppressed and that the decree‑holder himself
bid at the sale without any permission from the Court and there were material irregularities and fraud in publishing and conducting the sale. The lower appellate Court further held that the petitioner was entitled to seek relief under section 18 of the Limitation Act. The decree‑holder started with a set of motive that the property was grossly undervalued, evidently, with a view to scare away the intending bidders, processes were fraudulently suppressed and thereafter…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.