- (1.) S. U. Khan, J. Respondent No. 3 Bhawar Nath filed O. S. No. 281 of 1965 against original petitioner for recovery of Rs. 1,800 as damages for malicious prosecution. The suit was decreed for Rs. 1,300. Decree-holder filed application for execution of the decree which was registered as execution case No. 1 of 1970. Immovable property of the petitioner consisting of a three storied house containing 10 shops on the ground floor was sold in auction on 18-8-1982 for Rs. 36,000. It was the duty of the executing Court to ascertain as to whether sale of part of the property could satisfy the decree by virtue of Order XXI, Rule 64 C. P. C. vide 2006 (2) JCLR 674 (SC) : AIR 2006 SC 1458, Balakrishnan v. M. Konar. Even sale of one shop would have satisfied the decree of Rs. 1,300. The property was purchased by the decree-holder respondent No. 3 himself. It is stated that decree-holder had obtained permission of the executing Court for participating in auction proceedings. The sale was confirmed on 22-2-1983 and sale certificate was issued on 31-3-1983. Application for possession by decree-holder auction purchaser was filed on 13-4- 1983. On 6-10-1983 original petitioner filed application for setting aside the auction sale under Order XXI, Rule 90 CPC which was registered as Misc. Case No. 174 of 1983. The said application was dismissed on 29-10-1986 by Munsif Gohna Azamgarh. Against the said order petitioner filed Civil Revision No. 397 of 1986 which was dismissed by II Additional District Judge, Azamgarh on 14-9-1986. This writ petition is directed against orders dated 29-10-1986 and 14-9-1986.
(2.) IN the judgment of the executing Court, it is mentioned that petitioner had earlier filed some application/objection on 9-9-1982 against which objections were filed and application was rejected on 6-10-1982. By order dated 10-10-2006 (on the order-sheet) I directed learned Counsel for both the parties to file copy of the said application and order dated 6-10-1982 passed thereupon. Learned Counsel for the petitioner has filed supplementary affidavit in which it has been stated that application No. 208-C-2 is not available on record. Copy of order dated 6-10-1982 has been filed alongwith supplementary affidavit. The said order only says "counsel for Yasin is present. Heard. No one is present for Hari Shanker Prasad. 208-Ga-2 is rejected. " Even the learned Counsel for respondent has not been able to file copy of application 208-C-2. It is not clear that who was Yasin whose name is mentioned in the said order. Even in the objections filed by decree-holder respondent to the application of petitioner under Order XXI, Rule 90 CPC (copy of objection is Annexure 2 to the writ petition) it is not mentioned that earlier similar application had been rejected on 6-9-1982. Trial Court firstly held that in view of the application dated 9-9-1982 and its rejection on 6-10-1982 it was clear that petitioner had knowledge of the auction sale hence application was belated. However in the latter portion of the judgment the trial Court observed as follows : "however in the interest of justice, I am inclined to consider other objections raised by the objector. ". . . . . . . Thereafter the question of adequate sale price was considered and it was held that no material was brought on record to show that value of the property was three lakhs. " As application 208-C-2 is not on record and order dated 6-10- 1982 rejecting the said application does not contain any detail and as it appears that the said application was filed against some Yasin hence it can not be held that petitioner was aware of auction sale or similar application under Order XXI, Rule 90 CPC earlier filed by the petitioner had been rejected.
(3.) THE next question is that of limitation. Under Article 127 of the Limitation Act limitation to file application under Order XXI, Rule 90 CPC is sixty days. Decidedly the application was filed beyond that period. However if sale is held to be fraudulent then limitation will start from the date of knowledge. Alternatively if it is held that the sale was void then the application for setting aside sale may be treated to be under Section 47 CPC for which sixty days limitation does not apply. Under Section 17 of Limitation Act, it is provided that the period of limitation for an application shall run from the date on which applicant discovers the fraud or mistake where fraud was played by other party or limitation should start from the date of knowledge if the knowledge of the right on which application is founded is concealed by the fraud of the other side. In AIR 2002 Pun & Har 277, it has been held that if application for setting aside sale is filed on the ground of fraud in publishing or conducting the sale then the same may be made at any time. In the following authorities it has been held that if fraud was played by the decree-holder in conducting or publishing the sale then limitation under Order XXI, Rule 90 CPC is to be computed from the date when the fraud first became known to the judgment-debtor. (1) 1989 BLJ 309 (Patna ). (2) 1999 AIHC 939. (3) 1996 (1) Civil Law Journal 45 (Calcutta ). The Supreme Court in Deshbandhu Gupta v. N. L. Anand, 1994 (1) SCC 131, has held in para 17 that "under Section 47 CPC all questions relating to execution discharge or satisfaction of the decree should be determined by the executing Court alone. " It has further been held in the same para that "the total absence of drawing up of the proclamation of sale and settlement of its term by judicial application of mind renders the sale a nullity being void. It is covered by Section 47". In the said case for realisation of decreetal amount of Rs. 7,780 area of 550 square years of land was sold for Rs. 1,05,000.;