ORDER :- Civil Revision Cases 1219, and 1330 to 1332 of 1948 are directed against a decision of the Additional Judge of Alipore arising out of proceedings commenced under O. 21, R. 90 Civil P. C. The Rules were heard together. The relevant facts are as follows :

2. The Corporation of Calcutta brought a charge suit (Title Suit No. 291 of 1940) in respect of premises No. 12, Samsul Huda Road, against six brothers including Mahammad Hossain, Samsul Huq and Jiaul Huq on 19-6-1941. The suit was decreed in a preliminary form and on 2-2-1942 the decree was made final. On 26-7-1942, an execution proceeding (Title Execution Case No. 67 of 1942) was started. The property was sold by auction in execution of the decree on 20-1-1943 and purchased by Manmatha Nath Mukherji for a sum of Rs. 9000/-. It appears that on 26-4-1943, Mahammad Hossain applied for setting aside the sale. A similar application was made by Samsul Huq and another Judgment debtor on 20-12-1943. Both these applications which were under O. 21, R. 90, Civil P. C. were fought upto this Court but the applications were dismissed. Thereafter, Jiaul Huq another J.D. filed the present application on 24-9-1945 under O. 21, R. 90 for setting aside the sale alleging inter alia that he came to know of the sale for the first time on 26-8-1945. It was alleged that there was suppression of the material processes in connection with the sale, that the property in question was grossly undervalued and that the resultant sale fetched a very inadequate price. It was further alleged that due to fraud the applicant Jiaul Huq came to know of the sale only on 26-8-1945 and not before and as such he was entitled to the benefit of S. 18, Limitation Act. The application was contested both by the D.H., namely, the Corporation of Calcutta and the auction purchaser Manmatha Mukherjee.

3. The trial court upheld the contention of the applicant and set aside the entire sale. Against that decision both the D. H. and the auction purchaser preferred appeals before the Dist. J. The appeals were heard by an Additional Dist. J., who set aside the sale so far as the one-sixth share of the applicant Jiaul Huq is concerned but upheld the sale so far as the remaining five-sixth interest is concerned.

4. Against this decision, Civil Rule No. 1219 of 1948 has been obtained by the auction purchaser, whereas Civil Rule 1330 of 1948 has been obtained by Jiaul Huq, the applicant under O. 21 R. 90, Civil P. C. Civil Rule No. 1331 of 1948 has been obtained by Shamsul Huq and three others and Civil Rule No. 1332 of 1948 by Mohammad Hossain.

5. I shall take up Civil Rule No. 1219 of 1948 first.

6. On behalf of the auction purchaser, the main point canvassed before me by Mr. Gupta is to the effect that the lower courts were entirely wrong an holding that the applicant Jiaul Huq was entitled to the benefit of S. 18, Limitation Act. and in this connection strong reliance has been placed upon the recent Bench decision in the case of Mihirlal v. Panchkari Santra, 54 CWN 637. It has been contended that it has not been proved or found clearly that there was fraud on the part of the auction purchaser and as such so far as the auction purchaser is concerned the applicant for setting aside the sale under O. XXI, R. 90 Civil P. C. is not entitled to the benefit of S. 18, Limitation Act.

7. In reply to this argument, it is contended on behalf of Jiaul Huq that the necessary findings of fraud on the part of the auction purchaser were there and as such there was no reason why Jiaul Huq should not get the benefit of S. 18, Limitation Act. It was further contended that upon the findings of the lower courts to the effect that all the material processes were suppressed, the present application for setting aside the sale should be treated as one under S. 47 Civil P. C. and as such the applicant having come within three years of the sale no question of limitation arises at all.

8. As regards the second contention it may be mentioned that in the appl

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