AI Structured Summary
Facts, law points, precedents, ratio and the final ruling — distilled from the full judgment
AI Structured Summary
Facts, law points, precedents, ratio and the final ruling — distilled from the full judgment
Facts
The judgment-debtors applied alleging fraud on the part of the decree-holder and the auction-purchaser in connection with the sale. The question arose between the judgment-debtor and the auction-purchaser, who was not the decree-holder, as to whether the application fell within sec. 311 or sec. 244 of the Code and whether a second appeal lay. The District Judge decided the case on the footing that it fell within art. 166 of the 2nd schedule of the Limitation Act and that the petitioner was barred by that statute. His judgment was not clear whether he had found fraud; the High Court inferred that he intended to find that there was no fraud. The judgment-debtors alleged that the decree was ex parte, only for about 6 rupees, that it had since been set aside, that there was no service of the attachment writ or of any sale proclamation, and that property worth 1,200 rupees was sold for 12. The appeal was allowed with costs and the case was remanded to the District Judge.
Law Points
Whether a second appeal lies; whether an application alleging fraud is within sec. 244 rather than sec. 311 of the Code; whether the order is a “decree” within sec. 2 of the Code and is not one of the orders specified in sec. 588; whether art. 166 or art. 178 of the 2nd schedule of the Limitation Act applies; and whether fraud was established and what its effect on limitation is.
Acts & Articles
Code: sec. 311, sec. 244, sec. 588 and sec. 2. Limitation Act, 2nd schedule: art. 166 and art. 178.
Judgments Referred
Prosunno Kumar Sanyal v. Kali Das Sanyal, I. L. R. 19 Cal. 683 (689) (Privy Council) — cited and relied on for the view that the case is within sec. 244 although the question is between the judgment-debtor and the auction-purchaser who was not the decree-holder.
Obiter Dicta
Not discussed in this judgment.
Ratio Decidendi
An application alleging fraud—something more than a “material irregularity in publishing or conducting the sale”—falls within sec. 244 of the Code, even where the dispute is between the judgment-debtor and an auction-purchaser who is not the decree-holder. An order under sec. 244, not being one of the orders specified in sec. 588, is a “decree” within the meaning of sec. 2 of the Code, and a second appeal therefore lies. Article 166 of the 2nd schedule of the Limitation Act refers to applications under sec. 311, not to those under sec. 244. If fraud is found, art. 166 is no bar, the case comes within art. 178, and the three-year period had admittedly not expired; if no fraud is found, art. 166 applies and the petitioners should fail.
Final Ruling
The appeal was allowed with costs. The case was remanded to the District Judge, who was directed to find definitely whether there was fraud on the part of the decree-holder and the auction-purchaser or either. If fraud were found, art. 166 would be no bar, the case would come within art. 178, and the petitioner ought to succeed as the period of three years had admittedly not expired. If no fraud were found, art. 166 would apply and the petitioners should fail.
Plain-Language Gist
The High Court held that a second appeal lay because the judgment-debtors’ application alleged fraud and was treated as falling under section 244, not section 311. It held that the District Judge had wrongly applied the limitation article for section 311 applications and sent the case back for a clear finding on fraud. If fraud is found the limitation bar would not apply; if not, the petitioners would fail. The appeal was allowed with costs.
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Judgment
Maclean, C.J.—The first question is:--Does a second appeal lie?
It is difficult to say that the application is one entirely within sec. 311. Fraud is charged : the judgment-debtors'' case is fraud; something more is alleged than a "material irregularity in publishing or conducting the sale" and that being so, we think the case is within sec. 244, although the question is one between the judgment-debtor and the auction-purchaser who was not the decree-holder (see the judgment of the Privy Council in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal I. L. R. 19 Cal. 683(689). The order then is one under sec. 244, and is not one of the orders specified in sec. 588, it is a "decree" within the meaning of sec. 2 of the Code and a second appeal will therefore lie. The District Judge has decided the case on the footing that it falls within art. 166 of the 2nd schedule of the Limitation Act, and that the Petitioner is barred by that statute. This, we think, is erroneous as that article refers to applications under sec. 311 of the Code, and not to those under sec. 244.
It is not very clear from the judgment of the learned District Judge whether or not he has or has not found fraud. I should infer he intended to find that there was no fraud. We think in the first place he ought to find definitely whether there were or were not fraud on the part of the decree-holder and the auction-purchaser or either, and in dealing with this part of the case we would suggest that he should not lose sight of the judgment-debtors'' allegations that the decree was ex parte, only for 6 rupees or so that it has since been set aside, that there was no service of the attachment writ on him nor of any sale proclamation, and that the property, worth 1,200 rupees was sold for 12. If these allegations be satisfactorily proved it will be for the Judge to say whether such concatenation of circumstances does not indicate fraud on the part of the decree-holder and perhaps the auction-purchaser, one or both. If he find there were fraud, then art. 166 is no bar to the suit, and the Petitioner ought to succeed as the case would come within art. 178 and the period of three years has admittedly not expired. If he find the reverse then art. 166 would apply and the Petitioners should fail. With this indication of our opinion we remand the case to the District Judge. The appeal must be allowed with costs.
Macpherson, J.
I agree.