The judgment-debtors must prove fraud against the auction purchaser to whom the property was sold in order to take shelter under section 18 of the Limitation Act.

S. BARMAN, J.

( 1 ) THE auction-purchaser in an execution sale is the petitioner in this Civil Revision directed against an appellate order of the Additional District Magistrate, Cuttack, in execution appeal No. 22 of 1956-57 whereby he, -- in reversal of the order of the Rent Suit Deputy Collector, --set aside the sale in execution on the ground of fraud on an application under Section 228 (2) of the Orissa Tenancy Act (Bihar and Orissa Act II of 1913 ).

( 2 ) THE matter arose thus: In a certain execution case being Execution Case No. 414 of 1952- 1953 the Rent Suit Deputy Collector put to sale the properties of the judgment-debtors being opposite parties Nos. 1 and 2 herein. On March, 15, 1954 the present petitioner in revision purchased the property being 0. 48 cents in area for a sum of Rs. 25/- in the said execution auction sale. On July 14, 1954 the judgment-debtor opposite party No. 1 filed an application for setting aside the sale on the around of fraud under Section 228 (2) of the Orissa Tenancy Act. The broad allegations of the alleged fraud were that the said judgment-debtor did not come to know of the said sale until July 3, 1954. He further alleged that the peon did not go to the locality and that his report was not correct. On 22-11956 the Rent Suit Deputy Collector dismissed the said application for setting aside the sale holding that the sale notices were duly served and that the applicant failed to prove the alleged fraud in the service and further that the applicant was not entitled to the privilege allowed under section 18 of the Indian Limitation Act, On appeal, from the said order, the learned Additional District Magistrate on January 25, 1958 allowed the appeal holding that the application had been filed in time and accordingly set aside the said order of the Rent Court Deputy Collector. Hence this revision.

( 3 ) MR. R. N. Sinha, learned counsel appearing for the petitioner auction-purchaser contended that no particulars of fraud having been alleged or proved and further there having been no finding of fraud by the learned Additional District Magistrate in appeal against the auction-purchaser, --the judgment-debtors could not take shelter under section 18 of the Limitation Act. Section 18 of the Limitation Act reads as follows:

"where any person having a right to institute a suit or to 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, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application,- (a) against the person guilty of the fraud or accessory thereto, or (b) against any person claiming through him or otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first, became known to the person injuriously affected thereby, or, in case of the concealed document when ho first had the means of producing it or compelling its production. "

It is clear from the section that the suit or the application which the section protects from being barred by limitation on the ground of alleged fraud, must be an application against the person guilty of fraud or accessory thereto or against any person claiming through him otherwise than in good faith and for a valuable consideration, Keeping in view these provisions in the section, the judgment-debtors must prove fraud against the auction-purchaser to whom the property was sold. In the present case no fraud has been proved against the auction purchaser. The Calcutta High Court in Abul Tamil Samsul Hamid Choudhury v. Ambia Khatun, 43 Cal WN 862: (AIR 1939 Cal 663) held that when a judgment-debtor filed a time barred application to set aside the Civil Court sale and asks to invoke the aid of Section 18 of the Limitation Act, the initial onus lies very heavily upon him to show that by reason of fraudulent concealment on the part of the per