Exemption u/s 17(1) cannot be claimed.

S.M. Abdul Wahab, J.

1. This Letters Patent Appeal has been preferred by the auction purchaser against the order dated 11. 1994 by a single Judge of this court in C.M.A. No. 769 of 1993.

2. A third Party, namely the first respondent in the Letters Patent Appeal, filed E.A. No. 487 of 1992 in E.P. No. 91 of 1990 on the file of the Principal Subordinate Judge, Tirunelveli, for setting aside the auction in favour of the appellant under Order 21, Rule 89 and under Section 151 of Civil Procedure Code.

3. The case of the first respondent third party is that on 310. 1988 a preliminary decree was passed for partition. The persons to whom the properties, including the auction property was allotted, of fered to sell to him for a total sum of Rs.3 lakhs. The agreement was entered into on 6. 1990. He paid Rs. 5,000 on that day and another sum of Rs.60,000 on 17. 1990. According to him, the third item, which was sold in auction to the appellant, alone would fetch Rs.2,25,000. But in another suit O.S. No. 40 of 1982 for recovery of Rs.30,392, a preliminary decree was passed and subsequently final decree also was passed on 21. 1990. The decree-holders in the said suit, brought the third item of the suit property, which is the subject matter of the present dispute, to auction, pursuant to the final decree in E.P. No. 91 of 1990 in O.S. No. 40 of 1982. The appellant purchased the property in the auction for Rs.50,010 on 24. 1992. The third party filed a petition to set aside the auction sale of fering to deposit the necessary amounts. The appellant, who is the sixth respondent auction purchaser in the execution petition, filed a counter. According to him, the petition has been filed in collusion with the defendants in O.S. No. 40 of 1982. It is also stated that the petition is barred by limitation. The Principal Subordinate Judge, Tirunelveli, by his order dated 7. 1993, dismissed the petition. The main reason given by him for dismissing the petition is that the application to set aside the sale was beyond the limitation period. As against the said order of the learned Principal Subordinate Judge, the aggrieved third party filed the appeal C.M.A. No. 769 of 1993 in this Court. The Learned Single Judge of this Court allowed the Appeal by his order dated 11. 1994 in C.M.A. No. 769 of 1993. Hence, the auction purchaser has preferred this Letters Patent Appeal.

4. The main contention urged before us by the learned counsel for the appellant is that the first respondent has not specifically pleaded and proved that there was fraud in the conduct of the auction sale and only on such pleading and proving the fraud, the normal period of limitation can be got over.

5. In this case, the sale has taken place on 24. 1992. The petition for setting aside the sale ought to have been filed on or before 26. 1992 as per Article 127 of the Indian Limitation Act. The petition to set aside the auction sale was filed on 7. 1992. As per Article 127 of the Act the normal period of limitation prescribed for filing a petition to set aside the auction sale is sixty days from the date of such sale.

6. The learned single Judge has relied on the judgment reported in Ismail Rowthar v. Mynoon Bivi, A.I.R. 1966 Mad. 84. In the said Judgment, another learned single Judge of this Court has held that even though the petitioner had no locus standi to file an application for setting aside the sale, the sale can be set aside at his instance by the court exercising inherent power, if the court is satisfied that there was material irregularity or fraud. But we are not concerned in this case about the locus standi of the first respondent. What we are concerned is with the period of limitation.

7. At this junction, the learned counsel for the respondents sought to rely upon Section 17 of the Limitation Act and contended that since the executing court as well as the learned Single Judge of this Court has found that there was fraud, the limitation will begin to run