The burden is on the decree-holder to prove the mistake in the court sale and that the judgment-debtor had either actually discovered the mistake or could have done so with reasonable diligence even prior to the period of limitation.

1. The additional decree-holder is the revision petitioner, who is hereinafter referred to as 'the decree-holder'. He challenges an order dismissing his petition to set aside a court sale under Order XXI R.91 of the Code of Civil Procedure. We are now concerned only with item 2 of the properties sold in court auction which is hereinafter referred to as 'the property'. The property was attached on 19-8-1968. It was purchased by the decree-holder in the court sale conducted on 16-3-1970 for an amount of Rs. 10848.72. After confirmation of sale delivery was effected on 6-11-1970. Respondents 12 to 14 before the lower court filed a petition for re-delivery on 25-11-1970. The decree-holder received notice of this petition on 154-197I. He filed E. A. No. 128/71 under Order XXI R.91 CPC. to set aside the sale on 16-1-1971. Defendants 4 to 13 who were the owners of the property had sold it to respondents 12 to 14 before the lower court by registered sale deed dated 18-5-1966, namely before the date of attachment. Therefore the decree-holder alleged that the judgment-debtors had no saleable interest in the property and on that basis the application to set aside the sale was filed. The decree-holder also raised the ground that is the encumbrance certificate issued, the sale in favour of respondents 12 to 14 was not entered. It was further submitted that the 8th defendant who filed objections to the proclamation schedule did not disclose the fact of sale in favour of respondents 12 to 14.

2. The above facts are admitted by both sides. The only controversy is whether the application is barred by time. The execution court held that the judgment-debtors suppressed material facts in the objection filed to the sale proclamation and that made the decree-holder believe that the judgment-debtors bad saleable right over the property and as a result he purchased the property in court sale. It was also found that the decree-holder knew about the assignment in favour of respondents 12 to 14 only on 15-1-1971 when he received notice in the re-delivery petition filed by them and therefore he is entitled to get the period till 15-1-1971 excluded. Therefore the execution court allowed the petition and the sale was set aside. However, in appeal the lower appellate court was of the view that it is for the person who alleges fraud to prove beyond any reasonable doubt that fraud was played upon him by the opposite party. According to the appellate court there is no proper allegation in the affidavit in support of the application to set aside the sale. Reliance was also placed on the decision reported in Annamma v. Tresiamma 1975 KLT 388 FB.to the effect that non-mention of the fact that the judgment-debtors have no title to the property in the objection to the proclamation schedule will not amount to fraud or misrepresentation. Therefore, the lower appellate court held that the judgment-debtors were under no legal obligation to enlighten the decree-holder about the transfer of the property. Accordingly the appeal was allowed and the application to set aside the auction was dismissed.

3. In E. A. No. 128/71 the decree-holder has cited only Order XXI R.91 CPC. and S.17 of the Limitation Act. In para 5 of the affidavit in support of that application there is an averment that the 8th defendant had raised the objection that the property in question as well as the other properties included in the proclamation schedule will be worth over Rs. 6 lakhs. There is a further statement that on account of such an objection the decree-holder was led to believe that the property belonged to the defendants and that the defendants intentionally did not disclose the fact that the property was already sold by them and therefore, under S.17 of the Limitation Act the decree-holder is entitled to exclude the period from 16-3-1970 to 16-1-1971. The decree-holder did not mention that he is claiming relief under S 17(1)(a) of the Limitation Act, but merely stated S.17. In t