Govinda Menon, J.-The question referred to the Bench is as follows:

Whether section 18 of the Limitation Act can be invoked to give an extension of lime to an application to set aside a sale under Order 21, rule 90, Civil Procedure Code, in a case in which no allegation or proof of fraud is made or established as against the auction-purchaser”.

The finding concurrently arrived at by both the lower Courts is that the decreee holder was guilty of fraud in that the judgment-debtors were kept out of knowledg-about the sale in the execution proceedings by his act. Order 21, rule 90, Civil Procedure Code, makes it clear that an application under that rule can be made to set aside a sale on the ground of material irregularity or fraud in publishing or conducting it. It means that a material irregularity or fraud must be one antecedent to the sale. It is not likely in the majority of cases that the intending auction-purchaser would have played fraud in publishing or conducting the sale for at that stage he is nowhere in the picture and when the decree-holder himself becomes the purchaser and is guilty of fraud then the application would come within the purview of section 47 of the Civil Procedure Code and not under Order 21, rule 90.

That being the case the question has to be viewed from the standpoint as to who are the necessary parties in an application under Order 21, rule 90, Civil Procedure Code, after the expiry of thirty days from the date of the sale after which in the absence of any application under rule 80 or 90 of Order 21, Civil Procedure Code, or after an application is made and disallowed, the Court shall make an order confirming the sale whereupon the sale shall become absolute. Until the expiry of that period and the sale is confirmed in his favour, the auction-purchaser has not obtained any legal title to the properties sold and it is only an inchoate right which becomes fructified and crystallised when the sale becomes confirmed. Proviso to sub-clause(2) of rule 92, Order 21, lays down that no order setting aside the sale shall be made unless notice of the application has been given to all persons affected thereby. There was some argument at the Bar that this Proviso does not make it obligatory that the auction-purchaser is a necessary party to an application for setting aside a sale but is only a proper party and where it is intended to set aside the sale it would be sufficient if notice of the application is served on him on the footing that he is one of the persons affected by the application. In our view, the occasion for giving notice is before any order is passed on the petition. That is, it becomes necessary before an order setting aside the sale is made, that the auction-purchaser who is one of the persons affected thereby is heard. The state of things contemplated in Order 21, rule 92, has reference to an application made within thirty days and this rule normally does not take into account an application after the sale has become absolute. If according to the Proviso to sub-clause (2) of rule 92, Order 21, it is necessary that the auction-purchaser is heard before an order setting aside the sale is made, he should be deemed to be a necessary party whose absence would invalidate any order passed without hearing him. If that is-so, it is all the more necessary to hold that any application after the sale is confirmed for the invocation of section 18 of the Limitation Act, must necessarily have as one of the parties the auction-purchaser whose rights by that time have become crystallised and which would take effect from the date of the sale. Under these circumstances we do not find any difference as regards the necessity of the auction-purchaser being made a party to an application to set a ide a sale between a case where an application is made before the sale is confirmed and the one where the application is made after the confirmation of the sale. At page 908 of Mulla’s Civil Procedure Code, (12th edition), the

Click Here to Read the rest of this document