Sridhar Prasad Parhi and Another vs Haraprasad Parhi and Another

Rowland, J.—The petitioners'' holding was put to sale on 15th August 1941. It is said that through fraud of the decree-holder and of a co-judgment-debtor the sale was kept from the knowledge of the petitioners, that the petitioner, Bhima Biswal got a clue of the sale from a remark made to him by one Aparti Biswal on 17th September 1941 and from a question in cross-examination on that day in which it was put to this petitioner that all his lands had been put to sale, a fact which he denied. Thereafter, the Courts were closed from 19th September 1941 to 6th October 1941.

On the Courts reopening this petitioner presented an application for information as to the sale on 6th October 1941. The information was ready on 9th October, the petitioner actually took out the information on 25th October 1941, and the application to set aside the sale was presented on 31st October 1941. The Rent Suit Deputy Collector held that the sale had been fraudulently obtained by suppression of processes and that the petitioner had similarly been fraudulently kept from knowledge of the sale after the expiry of the normal period of limitation for an application to set it aside. He held that the applicants before him could count date of knowledge from 25th October 1941 for the purposes of Section 18, Limitation Act, read with Article 166. Accordingly the application was within time. On appeal to the Collector he held that taking the applicant''s allegations at their face value the date of knowledge was in his opinion 17th September 1941 and that the application was barred by time as having been presented beyond 30 days from that date. He says:

The limitation runs from the date when the judgment-debtor applicant ''first'' came to know of the fraud. Obviously it was in the Court.

Now it has been held that in cases falling u/s 18, Limitation Act, it is for the party who has committed fraud to show that the injured complainant has had clear and definite knowledge of the facts constituting the fraud. Proof of the fact that some hint or clue had reached the aggrieved party, which might have led to such knowledge was not considered enough in Rahimbhoy Habibhoy v. Charles Agnew Turner 17 Bom. 341 a decision of the Judicial Committee of the Privy Council. Another case in the Calcutta High Court was decided in Biman Chandra Datta v. Promotha Nath Ghose AIR 1922 Cal. 157. Here it was held that once fraud had been established, once it is proved that by means of fraud the person aggrieved has been kept from the knowledge of his right, the burden is then shifted to the other side to show that the plaintiff had knowledge beyond the period of limitation and such knowledge must be clear and definite knowledge of the facts constituting the particular fraud. It is not enough for the defendant to show that the plaintiff had some clues and hints which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fact. Similarly, in Swarnamoyee Dasi Vs. Probodh Chandra Sarkar and Others, it was held that once the plaintiff had shown himself entitled to invoke Section 18, Limitation Act, time did not begin to run against him until he acquired knowledge of the facts and this means clear and definite knowledge of the facts, that is to say, something more than showing that the plaintiff had means available to him for coming to know of the fraud.

In the light of these decisions, I think it ought to be held that the petitioner, if his allegations are true, was entitled to reckon his date of knowledge from 25th October 1941 or at earliest from 9th October 1941 when the information was ready for him. That being so, the decision of the Collector must be set aside and the case must go back to him for consideration on the merits as to whether the allegations made by the plaintiff and held by the Rent Suit Deputy Collector to be true are in fact substantiated. Costs will abide the result.