Ram Kinkar Tewari And Another Judgment-Debtors v. Sthiti Ram Panja Opposite Party.

1. We are invited in this Rule to consider the propriety of an order of refusal to set aside an execution sale in reversal of the order of cancellation made by the primary Court. On 14th July 1905, Becharam Panja obtained a decree for Rs. 16-12-0 for arrears of rent against Kshetranath Tewari. On 11th July 1908, the decree-holder applied for execution against the three infant sons of the judgment-debtor who had died meanwhile. In the application for execution, it was stated that the infants were under the guardianship of their mother. The amount for which execution was taken out was Rs. 28-9-0. The property was put up to sale on 22nd September 1908. The decree-holder was the only bidder present and the property was knocked down to him on his bid of Rs. 25. The sale was confirmed on 5th November 1908. On 18th December 1915, the maternal uncle of the infants applied to the Court to set aside the sale, on the allegation that it had been brought about by the fraudulent suppression of all processes and that the decree holder had thereby managed to acquire a property worth at least Rs. 300 for a sum of Rs. 25.

2. The application further stated that the petitioner had become aware of the sale of the property of his nephews only so recently as 29th November 1915. The Court of first instance found upon every point in favour of the applicant. The Court held that the notice under Section 248 of the CPC, 1882, the notice on the mother of the infants calling upon her to act as guardian ad litem of her infant sons, the writ of attachment, and the sale proclamation had never been served.

3. There was further the significant fact that, in each instance, a false return of service had been made. The Court also found that the true value of the property was as alleged by the petitioner, and thereupon set aside the sale. On appeal, the District Judge stated that he saw no reason to differ from the conclusions of the first Court upon the various questions of fact and law, but he proceeded to express the opinion that a very important aspect of the case had been overlooked by every one concerned. He held that as the infants had failed to prove possession within two years of the date of the application, their title had been extinguished under Article 3, Sch. 3, Ben. Ten. Act read with Section 28 of the Lim. Act, which applied by virtue of Section 185 of the Ben. Ten. Act. In this view, the District Judge set aside the order of the Court of first instance and dismissed the application for cancellation of the sale.

4. There can be he doubt that the order of the District Judge cannot possibly be supported. It is plain that Article 3, Sch. 3, Ben. Ten. Act has no application to the case before us. It is well settled that where a landlord, in execution of a decree for arrears of rent, puts the holding to sale, purchases it himself and obtains delivery through Court, such dispossession of the tenant is not dispossession within the meaning of Article 3: Kamal Dhari Thakur v. Rameshwar Singh Bahadur (1). Indeed, so long as the sale remains in force, the possession of the landlord auction-puchaser cannot possibly be challenged by way of suit. On behalf of the decree-holder, the view taken by the District Judge has not consequently been supported. But an endeavour has been made to maintain the order of the District Judge on the ground that the application is barred by limitation. The argument in substance is that although the sale took place on 22nd September 1908 and the right to apply for cancellation arose at that time, the present application, which was made on 18th December 1915, must be governed by the Limitation Act 1908, which by S. 6, restricts in a large measure the advantage enjoyed by infants under Section 7 of the Lim. Act, 1877. It is pointed out that whereas under the law as it stood in 1908, the infants petitioners would have been entitled to make the application even after the attainment of their majority under the law as it stood in 1915, the application would be barred unless it was made within the time prescribed in Col. 3, Sch. 1; in support of this view reliance has been placed upon the decisions in Arayil Kali Amma v. Pelappakkara (2) and Chidambaram Chetty v. Karuppan Chetty (3). The question raised does not, as we shall presently show, require consideration in this case; but when it arises, it may require careful examination, in view of the principle recognized in the cases of Manjuri Bibi v. Akkel Mahmud (4), Budhu Kumar v. Hafiz Hussain (5) and Gopeshwar Pal v. Jiban Chandra (6). It is plain, as the Courts below have found, that every notice contemplated by the Code has been fraudulently suppressed in this case.

5. Now as pointed out by the Judicial Committee in Raghunath Das v. Sunder Das Khetri (7), the omission to serve a notice under S. 248 of the Code of 1882 or under O. 21, R. 22 of the Code of 1908, is by itself sufficient to render the sale void for want of jurisdiction; for the notice is the very foundation of the jurisdiction. This view is in accord with a long series of cases in this Court: Ramesuri Dassee v. Doorga Dass Chatterjee (8), Gopal Chunder Chatterjee v. Gunamoni Dasi (9), Sahdeo Pande v. Ghasiram Gyawal (10), Mrs. Levinia Ashton v. Madhabmoni Dasi (11), Imamunnissa Bibi v. Liahat Hussain (12), Parashram v. Balmukund (13). It is further clear that the infants were not represented by a duly appointed guardian, as no notice was ever served upon the mother; nor was there any acceptance of guardianship by her: Khairajmal v. Dairn (14), Narsing Narain v. Jahi Mistry (15), Bal Kishan Lal v. Topeswar Singh (16), Dinabandhu Nandi v. Mashada Khatun (17), Purna Chandra Kumar v. Bijoy Chand Mahatap (18), Krishna Chandra v. Jogendra Narain (19), Safdar Ali v. Kishun Lal Lal (20). This consequently, is not a case where the Court is invited to set aside the sale merely on the ground of irregularity in publication or conduct of the sale. Here every process prescribed by the legislature with a view to apprise the judgment-debtors or their representatives that execution was to proceed against them had beau fraudulently suppressed. The case is thus governed by S. 47 of the Code of 1908, and the period of limitation would be that provided by Article 181, Sch. 1, Lim. Act. It is further plain that this is pre-eminently a case where Section 18 of the Lim. Act applies. Here the judgment debtors, who are infants, have been kept from the knowledge of their right to apply for a reversal of the sale, and as observed by Lord Hobhouse in delivering the opinion of the Judicial Committee in Rahimbhoy Habibhoy v. C.A Turner (21), the burden rests upon the person who has committed the fraud to prove conclusively that the person injured by his fraud has held clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to seek the assistance of the Court. The maternal uncle of the infants asserts that these proceedings were instituted by him within a few days of the date when he became aware of the fraudulent sale, and this has been believed by the Courts below.

6. The result is that this Rule must be made absolute, the order of the District Judge set aside, and that of the Court of first instance restored. This order will carry costs both here and in the Court below. We assess the hearing-fee in this Court at three gold mohurs.

V.B/R.K

7. Rule made absolute.