Judgement

Appeal (No. 38 of 1921) from a judgment and decree of the High Court (February 27, 1919) reversing a decree of the first Court of the Subordinate Judge of Mozaffapur (November 27, 1916).

The suit was brought in 1914 by one Rai Mahabir Prasad (now represented by the appellants) to recover possession of a village, the plaint alleging that certain execution proceedings in which the village had been sold on April 18, 1899, were illegal, collusive, and fraudulent. The first defendant, the present first respondent, by his written statement denied the facts alleged, and pleaded that the suit was barred by limitation.

The material facts appear from the judgment of the Judicial Committee.

The Subordinate Judge found that one Hari Narain, the purchaser at the sale, was merely a benamidar for the first respondent, as the plaintiff alleged. He held that the first respondent, having purchased after the refusal of an application by him under s. 294 of the Code of Civil Procedure, 1908, for permission to do so, the sale was void and inoperative. In his view the case was governed by art. 141, and not art. 12, of Sch. I. of the Indian Limitation Act, and the suit was therefore not barred by limitation. He made a decree for possession of the village.

An appeal to the High Court was allowed. The learned judges (Atkinson and Das JJ.) found on the evidence that it was not established that Hari Narain was a benamidar.

1922. May 2, 4. De Gruyther K.C., Parikh and Abdul Majid for the appellants. Upon the evidence it was established that Hari Narain purchased as benamidar for the first respondent. The decree-holder having been refused leave to bid, the transaction was fraudulent and wholly void. Under s. 18 of the Indian Limitation Act the suit was not barred since the appellants had no knowledge of the true facts. Although under s. 294 of the Code of Civil Procedure a purchase made by the decree-holder without the permission of the Court is merely voidable, a purchase by him after a refusal of permission is absolutely void; consequently art. 12 of the Indian Limitation Act, Sch. I., does not apply Syamlal Mandal v. Nilmony Das (( 1907) I. L. R. 34 C. 241.); Srimati Sarat Kumari v. Nimai Charn Dey (( 1918) 23 Cal. W. N. 265.) ; Mahomed Gazee Chowdhry v. Ram Lall Sen (( 1884) I. L. R. 10 a 757.); Mahibir Pershad Singh v. Macnaghten. (( 1889) L. R. 16 I. A. 107.)

Dunne K.C. and Dube for the first respondent. It was not established that Hari Narain was a benamidar. The nature of the evidence requisite appears from Sreemanchander v. Gopaulchunder (( 1866) 11 Moo. I. A. 28.) and Mahbub Ali Khan v. Bharat Indu. (( 1918)23Cal. W.N.325(P. C).) But in any case the sale was merely voidable, not void, and the suit was barred by art. 12 (a) Malkarjun v. Narhari. (( 1900) L. R. 27 I. A. 216.) The question of concealed fraud was not raised in India, and there was no issue or finding as to the date at which the alleged fraud became known ; it cannot be raised in this appeal.

De Gruyther K.C. replied.

May 25. The judgment of their Lordships was delivered by

LORD PHILLIMORE. Rai Gudar Sahay, a landowner in the district of Mozaffapur, borrowed from a joint family of moneylenders to whom the defendants belong, a sum of Rs. 16,000 on May 2, 1873, and mortgaged for it his village Mauza Kataya. The family afterwards separated, and upon the partition of their property various fractions in the mortgage became allotted to the different members. They, however, all joined in a suit brought in 1886 to enforce the mortgage, and in the ordinary course obtained a decree on May 31, 1886, under which if the money was not paid the property was to be brought to sale.

For a time no steps were taken to realize this decree, and the judgment debtor paid off portions by purchasing, through a benamidar, the shares of some of the decree-holders, for prices which it is noteworthy were considerably less than the nominal values. In January, 1889, he bought a share nominally worth Rs.71