Point of Law: Order XXI Rule 90 of CPC provides as application to set aside sale on ground of irregularity or fraud.

JUDGMENT :

A.BADHARUDEEN, J.

This appeal sprang up from the order in E.A.No.77/2014 in E.P.No.8/2008 in O.S.82/2004 on the files of the Sub Court, Attingal. The appellants are the legal representatives of one Gopinathan, S/o.Padmanabhan, who originally filed E.A.No.77/2014 as a third party seeking the relief to set aside the sale conducted in E.P.No.8/2008 in O.S.No.82/2004 on 14.06.2010 and confirmed on 16.08.2010.

2. The respondents herein are the decree holder/auction purchaser and the judgment debtors in the above E.P. During pendency of this appeal, the 1st respondent died and his legal heirs got impleaded as additional respondents 5 and 6.

3. Heard the learned counsel for the appellants as well as the learned counsel appearing for the 1st respondent in detail. Perused the lower court records and the relevant decisions on the point, including the decisions placed by both sides.

4. Shown off unnecessary embellishments, the facts of the case are as under:

Sundareshan, the 1st respondent herein filed Suit -O.S.No.82/2004, before the Sub Court, Attingal and obtained decree to realise an amount of Rs.1,44,450/-with 6% interest from respondents 2 to 4 herein on 31.05.2007. The property having an extent of 3.74 Ares in Survey No.1856 of Keezhattinkara Village, sold in auction in E.P.No.8/2008, which is under challenge in this appeal, was attached and a charge decree was passed. The predecessor of the appellants herein, Sri Gopinathan filed O.S.No.83/2004 against respondents 2 to 4 herein and he obtained a decree for realisation of an amount of Rs.1,45,000/-as per decree dated 09.02.2007. Sundareshan filed E.P.No.8/2008 and Gopinathan filed E.P.No.63/2009. While so, the proceedings in E.P.No.8/2008 continued and the same culminated in the sale of the property where both parties obtained charge decrees. Gopinathan filed E.A.No.77/2014 in E.P.No.8/2008 on 14.03.2011, a copy of the same is produced as Annexure-A, to set aside the sale, in fact, conducted on 14.06.2010 and confirmed on 16.08.2010, to be borne out from the proceedings before the execution court. (It is submitted by the learned counsel for the appellants that the date of sale is wrongly mentioned in the petition as 10.06.2010, instead of 14.06.2010). After confirmation of sale, Gopinathan filed E.A.No.77/2014 under Order XXI Rule 90 of the Code of Civil Procedure (`the CPC' for short hereinafter), challenging the same alleging `fraud’. The sum and substance of the contention raised by Gopinathan is that the 1st respondent obtained false encumbrance certificate without showing 3 more attachments subsisting at the time of sale and produced the same before the court to substantiate that the property is free from encumbrance, except the attachment effected in O.S.No.82/2003 as well as a mortgage in favour of a co-operative bank. The further contention is that the decree holder in O.S.No.82/2003 and the judgment debtors therein colluded together and thereby sold the property in court auction and the decree holder himself auctioned the property with permission of the court for a lesser price. According to Gopinathan the property would fetch Rs.1 lakh per cent as on 14.3.2011, but the sale was proceeded and confirmed, when E.P.No.63/2009 filed by Gopinathan to execute decree in O.S.No.83/2011 also has been pending.

5. While assailing the sale on the ground of fraud, it is submitted by the learned counsel for the appellants that though Gopinathan filed E.A.No.77/2014 on 14.03.2011, after expiry of 60 days, the petition is not barred by limitation in view of operation of Section 17 of the Limitation Act, 1963. According to the learned counsel for the appellants, when fraud is alleged, time would start to run only from the date of notice of fraud. Therefore, dismissal of E.A.No.77/2011 by the lower court mainly on the ground that the petition was barred by limitation is unsustainable.

6. The learned counsel for the appellants would submit that Annexures C & D are the encumbrance certifi