Narayan Sahu And Others Decree-Holders, v. Mohanth Damodar Das Judgment-Debtor, .

Jenkins, C.J:— The Appellant is a decree holder and a purchaser in execution of his own decree. His complaint is that the sale in execution of this decree has been set aside on an application under r. 90 of Or. XXI of the Civil Procedure Code though that application was made after the expiration of the period allowed by the Limitation Act. He also maintains that the order was erroneous on its merits. The sale was on the 15th of December 1908 the application on the following 15th of January. Article 166 of the Indian Limitation Act permits a period of 30 days only from the date of the sale for an application to set aside a sale in execution of a decree.

The application in this case was admittedly made beyond Ibis period, and the only answer proposed to this objection is that sec. 18 of the Act gave the applicant an extended period. The sole question is whether this is made out.

The Subordinate judge has decided in favour of the judgment debtor. In opposition to this the Appellant maintains that to satisfy the terms of sec. 18, the fraud must have been subsequent to the sale, and no such fraud is alleged. Next he contends that even if a wider scope be ascribed to the section, no fraudulent concealment is proved.

In support of the first of these propositions, Purna Chandra Mandal v. Anukul Biswas has been cited to us, and there, no doubt, it was said in reference to conditions, not unlike the present, that “the question of limitation depends upon what has taken place after the date of the sale with regard to the knowledge of the judgment-debtor concerned”. This passage is capable of a meaning to which no exception can be taken. At the same time it is at least equally open to a construction which would involve a doctrine difficult to reconcile with what was said by the Privy Council in Rahimbhoy Habibhoy v. Turner: this would be the case if by this passage is meant that what occurs prior to the sale can be wholly excluded from consideration, and a clean state claimed. But it was a saying of an early Chancellor, that frost and fraud end in foul; and in this lies the truth of the matter. Fraud—at any rate the class of fraud with which we are here concerned,—is a continuing influence and until that influence ends, it retains its power of mischief. And so, it was said in the case to which I have referred that when a man has committed fraud and has got property thereby, it is for him to show that the person injured by the fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud at a time which is too remote to allow him to bring the suit. If, therefore, the Appellant's success depended on the first of his two propositions I should have hesitated to decide in his favour.

But he is on firmer ground when he takes up his stand on the second of his two contentions was there any fraudulent concealment of the execution proceedings on the part of the Appellants? It is not suggested that there was any beyond what is disclosed in the judgment under appeal; and the Respondent sought to support the order under appeal on that judgment and on that judgment alone: beyond that we were invited not to go. It is true that the word “fraud” is used in the judgment with some freedom; but that is not enough. Do the facts constitute fraudulent concealment? It is an enquiry that requires considerable care, for fraud is not to be lightly charged or lightly found. This cannot be too much emphasized, especially in cases of this class where this reserve is too often neglected. The language of the Subordinate Judge in some measure invites the criticism that he seems to treat fraud and irregularity almost as one, and yet they essentially differ.

The misstatement of the value in the execution petition is described as a “fraud and irregularity”; irregularity it may have been; and even assuming for the sake of argument that it was a fraud, still it does not constitute the fraudulent concealment necessary to save limitation. Even if the non publication of the sale proclamation in the mofussil exposed the sale to attack at the instance of the judgment-debtor, it is not shewn that he has by means of fraud, of which the decree-bolder was guilty or to which he was accessory, been kept from the knowledge of his right. Nor can I find in the other facts on which the Subordinate Judge relies that which is necessary to bring the provisions of sec. 18 of the Limitation Act into play. And I desire to make it clear that the judgment-debtor requested us to decide this appeal on the materials contained in the judgment of the Subordinate Judge and on that alone. The appeal is therefore allowed with costs and the application dismissed with costs. We assess the costs of the Appeal at 5 gold mohurs. The money deposited will be refunded to the Respondent.

N.R Chatterjea:— I agree.

Appeal allowed.