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1968 Supreme(Ori) 65
HIGH COURT OF ORISSA
G. K. Misra, J.
SMT. BRAJABALA DAS - Appellant
Versus
RADHA KAMAL DAS AND ORS. - Respondent
Civil Revn. 288 Of 1966
Decided On : JULY 23, 1968
G.N.SENGUPTA, G.RATH, L.K.DAS GUPTA
Fraud must be established beyond reasonable doubt in order to invoke the benefits of Section 17 of the Limitation Act, 1963.
Headnote:
LIMITATION ACT - SECTION 17 - ORDER 21, RULE 90, C. P. C. - FRAUDULENT SUPPRESSION OF SALE PROCLAMATION - BURDEN OF PROOF - KNOWLEDGE OF FRAUD - REASONABLE DILIGENCE - JURISDICTION OF COURT UNDER SECTION 115, C. P. C. - PURCHASE BY AUCTION-PURCHASER ENURING TO THE BENEFIT OF JUDGMENT-DEBTOR UNDER SECTION 90 OF THE TRUSTS ACT.
Fact of the Case:
A valuable property was sold for a shockingly low price in an auction sale where the auction-purchaser, wife of one of the judgment-debtors was the sale bidder. The sale-proclamation was not published in the locality. The judgment-debtor filed an application under Order 21, Rule 90, C. P. C. to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it, invoking the protection of Section 17 of the Limitation Act, 1963.
Finding of the Court:
The court found that there was material irregularity in publishing the sale-proclamation and that the judgment-debtor sustained substantial injury on account of sale of a valuable property at a shockingly low price. The court also found that fraud was not established beyond reasonable doubt.
Issues: 1. Whether the sale should be set aside under Order 21, Rule 90, C. P. C. even if fraud in publishing the sale is not established? 2. Whether the judgment-debtor is entitled to the benefits of Section 17 of the Limitation Act, 1963? 3. Whether the finding of fraud recorded by the lower appellate Court can be interfered with in revision under Section 115, C. P. C.? 4. Whether a purchase by the auction-purchaser enures to the benefit of the judgment-debtor under Section 90 of the Trusts Act?
Ratio Decidendi: 1. Yes, the sale is liable to be set aside under Order 21, Rule 90, C. P. C. even if fraud in publishing the sale is not established, as there was material irregularity in publishing the sale-proclamation and the judgment-debtor sustained substantial injury. 2. No, the judgment-debtor is not entitled to the benefits of Section 17 of the Limitation Act, 1963, as fraud was not established beyond reasonable doubt. 3. Yes, the finding of fraud recorded by the lower appellate Court can be interfered with in revision under Section 115, C. P. C., as the Subordinate Judge committed an error of law on the question of fraud and gave himself a jurisdiction to try the application under Order 21, Rule 90, C. P. C. which did not vest in him. 4. This question is not germane to an application under Order 21, Rule 90, C. P. C, and is beyond its scope.
Final Decision: The judgment of the lower appellate Court is set aside and the application under Order 21, Rule 90, C. P. C. is dismissed.
G. K. MISRA, J.
( 1 ) PETITIONER Brajabala (auction-purchaser) is the wife of opposite party No. 2 radha Kumuda Das (one of the judgment-debtors), who is the elder brother of opposite party No. 1 Radha Kamal Das (the other judgment-debtor ). Opposite party No. 3 is the decree-holder. Both the judgment-debtors received notice under Order 21, Rule 22, C. P. C. in execution Case No. 62 of 1954 in the Court of the Munsif Balasore, arising out of a money suit No. 1277 of 1941 of the court of the Munsif, Kendrapara. Judgment- debtors took no steps. The disputed property was attached on 18-7-54. They received valuation notice and filed no objection. Sale-proclamation was issued on 21-9-54. Opposite Party No. 2 applied for instalments which were allowed. He paid rs. 700 in six instalments in between 16-7-55 and 30-4-56. Thereafter he defaulted. The total decretal dues were Rs. 1284-9-0. There remained thus a balance of Rs. 500 and odd out of the decretal dues, without payment. A fresh sale-proclamation was issued on 20-11-59. It was published in the daily prajatantra on 26-12-59 and also at the site by beat of drums. The sale took place on 15-1-60 and the property was purchased by the petitioner who was the sale bidder at the auction sale. The sale was confirmed on 19-2-60. Possession of the lands was delivered to the auction-purchaser on 1-8-62. Opposite Party No. 1 filed an application under Order 21, Rule 90, C. P. C. on 11-4-64 for setting aside the sale. In the application it was alleged that the decree-holder in collusion with the auction-purchaser and her husband fraudulently suppressed the sale-proclamation which was not published at the site and that opposite party No. 1 had no knowledge of the sale as a result of such fraud and consequently he was unable to make an application under Order 21, Rule 90 in time. He accordingly invoked the protection of Section 17 of the Limitation Act, 1963 (hereinafter referred to as the new Act.)Opposite parties 2 and 3 did not contest. The petitioner contested the application saying that there was no material irregularity or fraud in publishing the sale-proclamation and that opposite party No. 1 was not entitled to invoke the aid of section 17 of the new Act. The learned Munsif held that fraud was not established and the application under order 21, Rule 90 was barred by limitation. The learned Subordinate Judge in appeal held that a valuable property worth Rs. 7000 was sold for a grossly low value of Rs. 900 that there was fraudulent suppression of the sale-proclamation at the instance of opposite party No. 2 and that the application was within time as opposite party No. 1 was entitled to the protection of Section 17 of the new Act. He accordingly set aside the sale. Against the judgment setting aside the sale, the civil revision has been filed.
( 2 ) THERE is no dispute that a valuable property containing houses, orchard and two tanks upon an area of 2. 75 acres and odd of land within the municipal area of balasore town by the side of the main road, has been sold for a shockingly low sum of Rs. 900 in an auction sale where the auction-purchaser, wife of one of the judgment-debtors was the sale bidder. The learned lower appellate court has found that the sale-proclamation was not published in the locality. Order 21, Rule 90, C. P. C. , so far as relevant, runs thus: where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to a share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it; provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. The finding of the Subordinate Judge that the sale-proclamation was not served a
