Thakai Gope vs Ramlagan Manjhi and Others

Chatterji, J.—This is an appeal by the judgment-debtor from an appellate order dismissing his application under Order XXI, Rule 90 of the CPC for setting aside a sale.

Though the second appeal is from an, appellate order passed in- a proceeding under Order XXI, Rule 90, Civil Procedure Code, the appeal is maintainable, in view of the decision. of the Full Bench in ''RAMLAL SAHU v. MT. RAMIA'', 26 Pat 340 (FB), because the application under Order XXI, Rule 90 was also based on fraudulent suppression of the notice u/s 158B of the Bihar Tenancy Act which substantially corresponds to Order XXI, Rule 22 of the Code of Civil Procedure.

The learned Munsif allowed the application under Order XXI, Rule 90, holding that the notice u/s 158B as well as the sale proclamation were fraudulently suppressed. He also held that the application was not barred by time.

On appeal by the auction-purchaser, the-learned Subordinate Judge held that there was no fraudulent suppression either of the notice u/s 158B of the Bihar Tenancy Act, or of the sale proclamation. He also held that the application was barred by limitation. He accordingly allowed the appeal and confirmed the sale,

It is contended by Mr. R. K. Choudhuri on behalf of the appellant that one of the main reasons given by the learned Munsif for holding, that the notice u/s 158B of the Bihar Tenancy Act was fraudulently suppressed was: that one of the witnesses to the service report. Dunia Gope, was examined on behalf of the applicant and he not only denied the signature but also asserted that he was illiterate and his evidence was accepted by the learned Munsif but the learned Subordiante Judge did not apply his mind to the fact that Dunia Gope was illiterate.

The learned Subordinate Judge considered the evidence of Dunia Gope and he was not at all prepared to believe his evidence. In his opinion, the witness came to depose falsely to support the applicant in whom he was interested. It is true that he did not specifically refer to Dunia Gope''s evidence that he was illiterate, but when he definitely disbelieved his evidence and accepted the service report as true it necessarily implies that he must have disbelieved his evidence that he was illiterate. The finding that there was no fraudulent suppression of the notice u/s 158B of the Bihar Tenancy Act is a finding of fact which concludes this appeal.

The appeal is accordingly dismissed, but I would make no order as to costs because the applicant was minor at the time of the sale represented by his mother as guardian.