A sale held in execution of a time-barred decree is voidable and not void.

Untwalia, J.

1. This" appeal by the plaintiffs under Clause 10 of the Latters Patent on leave granted by a learned single Judge o£ this Court arises out of a suit filed by them for a declaration that the auction sale held on 17th May, 1950, and the delivery o£ possession following upon it on 23rd September, 1950, with respect to a house situate in mauja Khusrupur in the district of Patna are null and void and inoperative to divest the title of the plaintiffs thereto.

The principal defendants obtained a money decree against the plaintiffs and other members of their family in the civil court of Deoria (U.P.) on 14th June, 1932. Subsequently, on an application being made under Order 9 Rule 13 of the Code of Civil Procedure, the ex parte decree as against one Madho Lal who was defendant No. 1 in the action was set aside and the suit on being tried afresh was dismissed as against him on 17th July, 1936; but the decree against the plaintiffs passed on 14-6-32 remained.

The said decree was attempted to be executed by getting it transferred to the district of Patna for execution and the final transfer of the decree was made by virtue of the qrder dated 16-7-48. The said order was apparently within 12 years of the 17th July, 1936, but was beyond 12 years of the date of the decree against the plaintiffs. The execution case in which the impugned sale was held was actually filed on 14-7-49 and it was obviously beyond the period of time provided in Sec. 48 of the Code of Civil Procedure (hereinafter to be referred to as the Code).

Sale was held on 17-5-50 and delivery of possession was effected on 23-9-50,

According to the plaintiffs, all the notices and the processes in the execution case were fraudulently suppressed by the decree-holders respondents in order to get the time-barred decree executed without the knowledge of the appellants. Their further case is that after separation in their family they had shifted tb mauja Counpura and were not residing at Khusrupur at the time of the alleged service of notices and processes in the execution case.

2. The trial court as also the appellate court held that the decree, in view of the provisions of sec. 48 of the Code, was barred by time. This matter was not in controversy before the learned single judge of this court who heard and disposed of the second appeal nor was it disputed before us. It is obvious on the facts of this case that the sale was held in execution of a decree executed in contravention of the provisions of Sec. 48 of the Code.

But the courts have differed in regard to the question as to whether the present suit was maintainable in view of the bar of Sec. 47 and Order 21, Rule 92(3) of the Code. The two courts of fact below have also differed in regard to the question as to whether the notices and the processes in the execution case were not served and fraudulently suppressed. The learned Munsif has not accepted the case of the appellants that the processes were fraudulently suppressed and has come to hold that nothing was done behind their back as contended by them. The lower appellate court has believed the appellants story about the fraudulent suppression of notices and other processes of the execution case.

3. The first question for determination In this appeal is as to whether the present suit is barred either under Sec. 47 or under Order 21, Rule 92 of the Code. The learned single Judge of this court seems to be of the view that the sale held in execution of a time-barred decree is not void but voidable and, therefore, in view of the provisions of Sub-rule (3) of Rule 92 of Order 21 of the Code, the suit was not maintainable as the sale could only be attacked on the ground of fraudulent suppression of processes under order 21 rule 90. With respect I say that the present suit is not barred in view of the provisions of Rule 92(3) of the said order as the attack on the sale is not on the grounds of fraud in publishing and conducting the sale only -- a ground covered