Fraud against decree holder in publishing and conducting sale alleged.

These Revision Petitions arise out of orders setting aside a Court auction-sale on the ground of fraud and material irregularity in publishing and conducting the sale, and excusing the delay in filing the petition to set aside the sale. The auction-purchaser is the petitioner. The first respondent who is one of the judgment-debtors alleged that he was not served with the sale notice as he was absent at Rangoon and the decree-holder committed fraud in taking the sale notice to his village knowing that he was at Rangoon, that there was no proper proclamation and that the sale was vitiated by material irregularities. The decree-holder contended among others that the petition to set aside the sale was barred by limitation as it was filed beyond 30 days of the sale. Two petitions were filed by the first respondent in the District Munsif’s Court of Tanuku, E.A. No. 3420 1941, which was a petition under Order 21, rule 90, Civil Procedure Code, to set aside the sale and E.A. No. 947 of 1943 to excuse the delay in filing the petition to set aside the sale under section 18 of the Indian Limitation Act. Both the applications were allowed and the sale was set aside. The said orders were confirmed in appeals preferred by the petitioner. The auction-purchaser now seeks to contest the correctness of the orders of the lower Courts.

The finding that the sale was vitiated by fraud and material irregularities has not been contested before me and the counsel for the petitioner confined his arguments to the question of limitation, the finding having been that there was fraud played by the decree-holder on the judgment-debtor who was prevented from coming to know of the sale and it was held that section 18 of the Indian Limitation Act applied. The counsel for the petitioner argues that in order to entitle the judgment-debtor to avail himself of the extended time under section 18 of the Indian Limitation Act the fraud by reason of which the judgment-debtor was kept back from knowledge of the sale must be that of the auction-purchaser and not of the decree-holder. Section 18 runs as follows:

“Where any person saving a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded,.....the time limited for instituting a suit or making an application-(a) against the person guilty of the fraud or accessory thereto,........shall he computed from the time when the fraud first became known to the person injuriously affected thereby,..........”

The fraud contemplated under section 18 of the Indian Limitation Act must therefore be a fraud of the person against whom the suit or application is made. It is therefore for consideration whether an application under Order 21, rule 90, Civil Procedure Code, is an application against the decree-holder or the auction-purchaser or against both. For such an application the decree-holder is a necessary party. Under Order 21, rule 92, Civil Procedure Code, clause 2, it is provided that no order setting aside the sale shall be made unless notice of the application has been given to all persons affected thereby and the auction-purchaser would necessarily be a person affected by the sale and therefore notice should go to the auction-purchaser before an order is made setting aside the sale. Though the Code does not provide that in an application under Order 21, rule 90, Civil Procedure Code, for setting aside the sale an auction-purchaser is a necessary party yet notice having been provided for him in case the order is made setting aside the sale it can be stated that he will be a proper party to the application and will be a necessary party at a later stage when the order is made. In this case the fraud alleged and proved is that of the decree-holder alone that he knowing that the first respondent was at Rangoon successfully prevented him from knowing the sale, and the auction-purchaser therefore does not come in on the scene at