The court considered the application of Section 18 of the Limitation Act in determining the extension of time for setting aside a sale under the Ben. Ten. Act.

ORDER

Lodge, J. - This rule was issued to show cause why an order passed u/s 174 (3), Ben. Ten. Act, should not be set aside.

2. The material facts are as follows. The landlord instituted a suit for assessment of rent; and for recovery of rent and obtained a decree. In execution of that decree, the holding was put to sale on 21st May 1942. The sale was confirmed in the ordinary way on 22nd June 1942. On 3rd July 1942, the auction-purchaser took out the sale certificate and, according to the record, obtained delivery of possession through Court on 2nd March 1943. On 12th June 1943 one of the tenant judgment-debtors filed two applications before the Court. One was an application under Order 9, Rule 13 and the other was an application u/s 174(3), Ben. Ten. Act. In these applications he asserted that he had been kept out of knowledge both of the decree and the sale and he had come to know of both of them on 3rd June 1943, The application under Order 9, Rule 13 was dismissed on 30th November 1943 and no appeal against the order of dismissal was preferred. The application u/s 174 (8), Ben. Ten. Act was dismissed by the Court of first instance on 21st February 1944. The learned Munsif found that processes had not been suppressed, that the property had not been sold at an inadequate price, that the auction-purchaser was benamdar of one of the judgment-debtors and that the application was barred by limitation.

3. The applicant appealed to the Subordinate Judge. His application was allowed, the Subordinate Judge finding that processes 'were suppressed and that there was fraud on the part of the decree-holder, The learned Judge accordingly set aside the sale on certain conditions, The auction purchaser has moved this Court.

4. On behalf of the auction-purchaser it has been argued first, that the learned Judge was wrong in his decision that processes had been suppressed and secondly, that the learned Judge had not considered the question of limitation.

5. With regard to the first of these points the evidence of service of processes was evidence that the concise statement was sent by registered post. Some of them were served by the judgment-debtors and seven were returned with the endorsement 'refused.' It has been argued that there is a presumption from this endorsement that the notices were tendered to the judgment-debtors and that until that presumption is rebutted the Court ought to hold that there had been proper service. It was argued further that in the present case there was no evidence to rebut the presumption and that therefore the learned Judge was wrong in his finding and acted irregularly in the exercise of his jurisdiction in coming to this wrong finding. Reliance was placed on the case in Haripada Dutta v. Joy Gopal 39 C.W.N. 934. The facts of the case relied on were very exceptional and entirely different from the present case. There can be no doubt, however, in view of that 'ruling that where notices are sent by registered post and returned with the endorsement 'refused' the Courts are entitled to presume that they were tendered. In this particular case the person to whom they were stated to have been tendered denies that they were tendered to him. The learned Subordinate Judge held that the denial in the circumstances of the present case was sufficient to rebut that presumption and I am not prepared to hold that he was not right in doing so or that he was not competent to consider the circumstances and this refusal as sufficient to rebut the presumption. In this view I am not competent to question the finding that processes were in fact suppressed.

6. This leads us to the question whether the learned Subordinate Judge did or did not consider the question of limitation and whether in considering the question of limitation, if he did so, he acted with material irregularity in the exercise of his jurisdiction. As stated above the sale took place on 2lst May 1942. The application u/s 174(3), Ben. Ten. Act was made on 12th June 1943