KOKIL SINGH Vs. EDAL SINGH

JUDGEMENT

(1.) The appeal arises out of proceedings taken in execution of a mortgage decree, which had been obtained on the 19 December 1900 by Pokhan Singh and others against the mortgagors and Edal Singh, a puisne mortgagee, who had obtained a decree on his mortgage and had brought to sale and had purchased some of the mortgaged properties. The mortgaged properties were put up for sale en the 19 March 1902, and one of them was purchased by the present appellant. The sale was confirmed and possession was afterwards delivered on the 4 June 1902.

(2.) On the 21 June 1902 two applications were made to the Court executing the decree by the judgment-debtor, Edal Singh, the respondent in the present appeal. One under Section 108, Civil Procedure Code, was to have the decree set aside, the other under Section 311, Civil Procedure Code, was to have the sale pet aside, In support of both applications, allegations of fraud were made against the decree-holders. The Subordinate Judge dismissed the application under Section 108, Civil Procedure Code, holding that the grounds put forward to support it had not been substantiated. With that application we have no concern in this appeal.

(3.) The other application although ostensibly under Section 311, Civil Procedure Code, the Subordinate Judge has treated as one falling under Section 244, Civil Procedure Code. In his judgment he points out that the main basis for the application was fraud, and he deals in detail with the various facts and circumstances on which the applicant relied to support his case that there had been fraud on the part of the decree-holder. He found that there had been a fraudulent concealment of the various processes issued by the Court and a complete failure, the result of fraud, to comply with the provisions of Section 290, Civil Procedure Code. He held that the omission to publish a copy of the sale notification in the Court of the Subordinate, Judge executing the decree was manifestly the result of design and not of mistake--the object being to conceal from the present respondent the fact that the property was to be sold. Finding "therefore that the application before him although it proceeded under Section 811, Civil Procedure Code, and Section 244, Civil Procedure Code, fell under Section 244, Civil Procedure Code, on the ground of fraud and illegality, he held that the application had been brought within time and he set aside the sale on the ground of fraud. He further held that owing to the omission to comply with the provisions of Section 290, Civil Procedure Code, there could have been no sale in compliance with the conditions required by that section, and that the sale on that account was illegal. On that ground also he held that the sale should be set aside.