Kailash Chandra Haldar Auction-Purchaser v. Bissonath Paramanic Judgment-Debtoropposite Party.

Petheram, C.J:— We think that this Rule must be made absolute. The rule was obtained to set aside the order of the District Judge setting aside a sale of property which took place on the 7th April 1894. The sale took place as I say on that day: the certificate of sale was granted on the 28th August in that year, and the present application to set aside the sale was made on the 8th September following. The period of limitation which is fixed for making this application is 30 days, so that the time had long expired on the 18th September, and the only way in which the master could then be brought within the period of limitation was by the operation of sec. 18 of the Limitation Act.

sec. 18 of the Limitation Act has not been dealt with by the District Judge in his judgment, and unless he could come to the conclusion that he could deal with it in that way and as it appeared on the face of this record that the matter was barred unless it could be brought within that section, it appears to us that he had no jurisdiction to deal with the matter and therefore we have jurisdiction to interfere under sec. 622, C.P.C

That being the state of things, Dr. Asutosh Mukerjee asked us to send this case back to the learned Judge for him to consider the evidence and to say whether there was any evidence which could bring the matter within the provisions of the 18th section of the Limitation Act. We did not think it right to do that, but we had the evidence translated and it is now before ourselves and when that evidence is looked at, it is clear there is no evidence of any fraud on the part of the decree-holder or auction-purchaser by which the existence of the right to set aside the sale was concealed from the knowledge of the judgment debtor so as to bring sec. 18 of the Limitation Act into operation.

The original application was an application under sec. 311 of the Code of Civil Procedure and the foundation of it was that the sale proclamation had not been properly published. It has been established to the satisfaction of the District Judge that the sale proclamation was not published, but as to how it came not to be published there is no evidence.

Babu Lal Mohan Dass contends that the mere fact that it was not published is evidence that it was fraudulently suppressed by the decree-holder. We cannot agree with that because there are a great many ways in which it may have happened that this proclamation was not published which may be quite consistent with the absence of fraud on his part and without his having any knowledge that it was published at all. But even if that were not so, it is not sufficient here, because it is necessary to carry the fraud further and to show that the fact that the sale was brought about on the 7th April without any publication of the advertisement was kept from the knowledge of the judgment-debtor by the fraud of the decree-holder or auction-purchaser until the time when he made his application in September; but there is not a tittle of evidence on this record of anything of the kind. The result is that there is nothing here to take the case out of the operation of the ordinary law of limitation, and this rule must be made absolute with costs.

(Reported H.C.B)

Rule made absolute.