1965 Supreme(All) 162

Allahbad High Court
GANGESHWARPRASAD
Bhojai - Appellant
Versus
Salim Ullah - Respondent
Decided On : 10/22/1965

Headnote:

CIVIL PROCEDURE CODE - O. XXXIV, R. 5 - O. XXI, R. 92 (3) - SETTING ASIDE FINAL DECREE AND AUCTION SALE - FRAUD - BONA FIDE PURCHASER - NOTICE OF APPLICATION FOR PREPARATION OF FINAL DECREE - SERVICE OF NOTICE - FALSE REPORT OF SERVICE - EFFECT - AUCTION SALE IN FAVOUR OF BONA FIDE PURCHASER - WHETHER CAN BE SET ASIDE - CIRCUMSTANCES TO BE CONSIDERED.

Fact of the Case:

The plaintiff purchased a house in 1937. Adjoining this house was a house owned by defendants Nos. 2 and 3. These houses were situate within the municipal limits of Allahabad. Formerly, both these houses were designated by one single municipal number, i.e., No. 136, but later the house in dispute was described as No. 136-A and the house owned by defendants Nos. 2 and 3 as No. 136 in the municipal records. Defendant No. 1, the Municipal Board of Allahabad, brought suit No. 174 of 1943 at Allahabad for the recovery of Rs. 16-12-0 as arrears of house and water taxes in respect of the houses against the plaintiff and defendants Nos. 2 and 3 and a preliminary decree for sale under O. XXXIV, R. 4 of the C. P. C. was passed in that suit on 11-4-1944. At the time of the suit the houses were not only described as No. 136 but were entered in the names of defendants Nos. 2 and 3 alone in the municipal records. The plaintiff was living at Calcutta with his family for several years past, but he came to learn of the suit and thereupon filed a defence and contested the suit. At the stage of the preliminary decree, therefore, defendants Nos. 2 and 3 did not succeed in their design. Subsequently, however, when proceedings for the preparation of final decree and for sale in execution thereof were taken, defendants Nos. 2 and 3 in collusion with the Pairokar of defendant No. 1 managed to keep the plaintiff entirely in dark about the proceedings by getting false and fraudulent service of notices effected against the plaintiff at Allahabad, although the plaintiff was throughout at Calcutta. It is alleged that no sale proclamation was ever made and everything pertaining to the sale was done with utmost secrecy so that attention of people might not be attracted. The house belonging to the plaintiff was ultimately shown as having been auctioned for a sum of Rs. 70 in favour of Bhojai defendant No. 4, who according to the plaintiff was a Benamidar for defendant No. 2. It is said that the house had been rebuilt by the plaintiff after the purchase and its value at the time of the alleged auction sale was about Rs. 5,000.

Finding of the Court:

The trial Court held that no fraud was proved and dismissed the suit. On appeal by the plaintiff, the learned Civil Judge disagreed with the conclusion of the trial Court and found that the final decree was obtained by fraud in the manner alleged by the plaintiff and was the result of a collusion between the defendants. The judgment of the trial Court was, accordingly, reversed by the learned Judge, and the suit of the plaintiff was decreed. Bhojai defendant No. 4 who claims to be the auction purchaser of the house in dispute has preferred this appeal.

Issues: 1. Whether it has been established from the facts and circumstances of the case that the final decree in question was obtained by fraud? 2. Whether the final decree cannot be said to have been obtained by fraud merely on the ground that notice of the proceedings for the preparation of the decree was not properly served on the plaintiff? 3. Whether no provision of the C. P. C. requires notice of the application for the preparation of final decree to be issued, and no fraud in relation to the service of such notice can, therefore, vitiate the decree? 4. Whether the appellant is a bona fide purchase for value, and his rights under the auction sale cannot be affected by a fraud to which he himself was not a party? 5. Whether the auction sale has become absolute and the suit of the plaintiff is barred by O. XXI, R. 92 (3) of the C. P. C.

Ratio Decidendi: 1. The finding of the learned Civil Judge on the question of fraud is not open to challenge. The facts and circumstances of the case justify an inference of fraud. 2. The final decree cannot be said to have been obtained by fraud merely on the ground that notice of the proceedings for the preparation of the decree was not properly served on the plaintiff. 3. A provision of the C. P. C. requires notice of the application for the preparation of final decree to be issued, and fraud in relation to the service of such notice can vitiate the decree. 4. The appellant is not a bona fide purchaser for value, and his rights under the auction sale can be affected by a fraud to which he himself was a party. 5. The auction sale has not become absolute and the suit of the plaintiff is not barred by O. XXI, R. 92 (3) of the C. P. C.

Final Decision: Appeal dismissed.