JUDGMENT
Wort, J.
1. This rule is directed against the judgment of the learned District Judge of Muzaffarpur, who set aside the decision of the Munsif in an application under Order XXI, Rule 90, Civil Procedure Code.
2. It was contended by the judgment-debtor that he had no knowledge of the auction sale under which his property was sold, that the notice had been suppressed, and that there was material irregularity or generally speaking fraud had been committed in publishing the sale. It also appears that the application was out of time and it is contended that not until June following the sale he had any knowledge of it. On that allegation the learned District Judge came to the conclusion that the provisions of Section 18, Limitation. Act, could be called to his aid.
3. It is quite clear that the learned Munsif in trying this application came to a conclusion that the sale was conducted in a perfectly regular manner, that the notices were served on the necessary parties, and he also found that the judgment-debtor had sustained no substantial injury. It was, therefore, a clear finding on the questions that were necessary for his determination in favour of the auction-purchaser, who incidentally, I might mention, was a third party and was not the decree-holder.
4. The learned D strict Judge has, as I have already stated, set aside that finding because having set out the history of the matter, particularly that relating to certain litigation on which the judgment-debtor pursued up to the High Court, he thought that it was quite sufficient for him to hold that fraud had taken place. His reasoning is this, that the judgment-debtor pursued, as I have already stated, the litigation in regard to this property right up to the High Court, and it would appear he spent large sums of money and then over a mere claim of a few rupees, altogether Rs. 7 -6-3 it was impossible to think that for so small a sum the judgment debtor would allow his property to be sold. It appears that the learned Judge was of the opinion that the circumstances were so strong and the inference to be drawn from those facts was such that he was bound to come to the conclusion that fraud had been perpetrated.
5. Now the real question that comes before me is whether in this application in which I am asked to exercise my revisional powers in the circumstances stated I can set this judgment aside. The question is whether the learned District Judge has exceeded his jurisdiction or failed to exercise it or has proceeded with material irregularity. I have not the slightest doubt that no difficulty would arise in this case had it been an appeal from the appellate order. It is quite clear that his judgment -is not in accordance with law. The learned Judge was not entitled to brush aside the oral evidence in the case and come to a conclusion that fraud had been proved on facts which were susceptible to a variety of explanations. It is unnecessary for me to mention what explanation would be forthcoming, why the judgment-debtor was not active when his property was being put up to sale. It may have been dilatoriness or there may have been many other reasons; but the circumstance, which in any event, is equivocal and certainly cannot be relied upon by the Court in order to establish fraud. As I have already stated the learned Munsif considered the evidence and came to a certain conclusion and that conclusion is against the judgment-debtor.
6. I have already stated the finding of the learned District Judge on the question of fraud. The manner in which he disposes of the oral evidence is this. Ha first discusses the evidence of the Civil Court peons and states four of them have no personal recollection of the facts and only attest their service reports, only one of which speaks of personal service on which occasion the appellant might easily have been personated I am informed but I in no way base my judgment upon this statement that the learned Judge has committed an error of record that four of these Civil Court peons have no personal recollection of the facts. Be that as it may, but for the learned Judge to dispose of the one who speaks of personal service by stating that the appellant might easily have been personated is a speculation of the worst possible character. He then deals with other witnesses and disposes of them by stating that they are tenants of the respondents. 80 they may be tenants of the respondents, but they may, all the same, be truthful and unless their evidence is shaken in cross examination or their demeanour is such as to lead one to the inevitable conclusion that they have perjured themselves, then no Court is entitled to discard evidence on grounds which, to repeat myself, are merely speculative.
7. There are two other questions which came before the learned Judge. The second one was the question of whether the judgment-debtor was entitled to have the advantage of the provisions of Section 18, Limitation Act. It is wise perhaps to set out the provisions of this section which are as follows:
Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded…then the time limited for instituting a suit or making an application shall be computed from the time when the fraud first became known to the person injuriously affected thereby etc.
8. It is quite clear that, according to the finding of the learned Judge, the judgment-debtor came to know of these proceedings only in June following the sale and in so far as that is a finding of fact, of course, this Court can in no way disturb it. But it is suggested on behalf of the applicant before me that the learned Judge has placed the onus upon the wrong party or failed to consider the questions which he ought to have determined in order to come to the conclusion at which he has arrived in relation to Section 18, Limitation Act.
9. There are a number of cases which have been quoted and relied upon by the parties to this litigation and they seem all of them, to be based on the case of Rahimbhoy Habibbhoy v. Charles Agnew Turner 17 B. 341 : 20 I.A. 1 : 6 Sar.P.C.J. 256 : 17 Ind. Jur 40 (P.C.) which came up before the Judicial Committee of the Privy Council. In that case Lord Hobhouse delivering the opinion of the Judicial Committee made this statement:
That, when a man has committed a fraud and has got property thereby, it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit.
10. In a judgment of this Court it has been pointed out, particularly in the case of Mahabir Ram v. Rambahadur Dubey 72 Ind. Cas. 625 : 4 P.L.T. 306 : A.I.R. 1923 Pat. 435 and it seems clear, that a party guilty of fraud must show that the continuing effects of the fraud have been removed.
11. There is another judgment of this Court in the case of Thakur Mahton v. Jhaman Mahton 80 Ind. Cas. 761 : 5 P.L.T. 200 : A.I.R. 1924 Pat. 496 in which Jwala Prasad, J., stated a proposition to the like effect as the one which I have just quoted in the judgment of Ross, J., in the case of Mahabir Ram v. Rambahadur Dubey 72 Ind. Cas. 625 : 4 P.L.T. 306 : A.I.R. 1923 Pat. 435.
12. It is, therefore, clear that if fraud had been established in this case as against a party who was deriving benefit therefrom it was for him to show circumstances, or, to use the words in the judgment of Ross, J., ” the continuing effects of fraud have been removed, ” in other words, the effects of the fraud which was perpetrated in regard to the sale had been removed and that, therefore, the judgment-debtor had had an opportunity of coming to the knowledge of the sale. But it is quite clear that before one can arrive at that stage one must see whether the Court has come quite clearly to a finding that there was fraud in connection with the sale itself. I have already dealt with that and I leave it for a moment to discuss another question which must arise in applications under Order XXI, Rule 90.
13. There is no doubt that even if there were any difficulty about the construction of Order XXI, Rule 90, before a sale can be set aside it must be shown that the applicant has sustained injury; and in regard to that matter, to repeat myself, if there was any difficulty about the construction of that rule or order, there is abundant authority in this Court and in other High Courts. One of the most usual forms of showing that is to show that the property has been sold at a gross undervalue. In this case, in spite of the argument which has been addressed to me by Mr. Hasan Jan to the contrary on behalf of the opposite party, there is a clear finding by the learned Munsif that the property was not sold at an undervalue. The learned District Judge does not deal with that question at all. He says, to use his own words:
I, therefore, find nothing in these arguments, and in the circumstances the question of inadequate price which has also been raised by the applicant does not arise.
14. The learned Judge was clearly wrong. The question does arise in this case and arises in all cases of applications under this order. In those circumstances it, seems to me that the learned Judge in coming to the conclusion that the decision of the learned Munsif should be set aside has exceeded his jurisdiction; he has made an order upon findings which are quite insufficient to give him jurisdiction to come to the conclusion at which he has arrived. I have stated, and I repeat myself, that he has brushed aside the oral evidence, he has come to a conclusion that fraud exists on the basis of circumstances which are in their nature equivocal; he has declined to go into the question of the adequacy of price and the fact that he remarks at the end of the passage to which I have referred that the price seems very low is no finding in law at all.
15. In my judgment, therefore, the order of the learned District Judge must be set aside and the case remanded for him to hear and determine it according to law.
16. The costs of this application will abide the result.