1. This Rule was obtained by some of the judgment-debtors on an application under section 115 of the Code of Civil Procure arising out of a proceeding under section 174 (3) of the Bengal Tenancy Act wherein the petitioners before me prayed for setting aside the sale held on 11th November 1954, in respect Of the land mentioned in the said application.
2. The petitioners filed the application under section 174 (3) of the Bengal Tenancy Act on 2nd February 1950, in the 2nd Court of Munsif, Satkhira, with the prayer for setting aside the sale dated 11th of November 1954, held in rent execution case No. 889 of 1.954 alleging, inter alia, that concise statement, sale proclamation and other processes were not served and the same were fraudulently suppressed and that although the peti--tioners Nos. 2 and 3 were minors at the time of the said sale they were shown as major in the said execution case and the Opposite-Party No. 4, one of the auction-purchasers, was him--self a judgment-debtor and Opposite-Parties Nos. 1-3 who are auction-purchasers were wives and benamdars of some o f the judgment-debtors and that there was material irregularity and fraud in publishing and conducting the sale. It was further alleged that the petitioners for the first time came to know of the sale on the 23rd of January 1959 from one Madar Gazi P. W. 2 and that after obtaining the information slip as to the sale in question the application for setting aside the sale was filed on 2nd of February 1959.
3. The opposite-parties Nos. 1-4 who are decree-holders auction --purchasers contested the application of the petitioners denying all the allegations in the said application and contended, inter alia, that processes were duly served and the application was hopelessly time-barred and as such the applicants were not entitled to any relief on the said application for setting aside the sale.
4. The learned Munsif by his order dated 15th of September 1960, allowed the application and set aside the sale in question holding inter alia that a concise statement teas issued to the persons whose names did not tally with those of the judgrtlent --debtors and acknowledgment receipts were wanting in showing the actual service and that there was nothing on record to show that the concise statement was actually sent to the judgment--debtors including the petitioner. 7 he learned Munsif Also observed that 2 judgment-debtors Purna Chandra and Krishnapada were themselves looking after the execution case and Pyrna Chandra was identifier in the service of the sale-proclamation and Krishnapada was identifier in the service of writ of Posses--sion and that instead of resisting the sale they allowed the properties to be sold and the auction-purchasers were their wives. The learned Munsif also found that Krishnapada one of the auction-purchasers, was himself a judgment-debtor though he was at the same time a decree-holder, But the fact remains that he was a judgment-debtor and as such he was debarred from bidding under subsection (2) of section 173 of the Bengal Tenancy Act. From the above facts and also after discussing oral evidence the learned Munsif inferred that there was fraud in publishing and conducting the sale. While considering the question of knowledge of the petitioners as to the sale the learned Munsif found that the auction-purchasers is (opposite-parties) admitted that the petitioners were in posses--sion of the disputed land and as such the petitioners being all along in possession of land it was quite possible that they had been unaware of the sale. On the said finding the learned Munsif held that the application was not barred by limitation and that the petitioners were entitled to benefit of section 18 of the Limitation Act.
5. On appeal by the auction-purchasers the learned District Judge reversed the decision of the learned Munsif in part and modified the decision of the learned Munsif to the effect that the Miscellaneous Case of petitioner No. 3 was allowed against the opposite-parties 1 to 4 on contest and the sale in question was set aside so far as the share of petitioner No. 3 was concerned and that the petitioner No. 3 was not bound to pay any sum towards the decretal amount the learned District Judge thus, by this judgment dated 23rd January 1961, dismissed the application of petitioners Nos. 1 and 2 against the opposite-parties Nos. 1 to 4 and ex parte against the rest of the opposite-parties in the said appeal before him. The petitioners having felt dissatisfied with the decision of the learned District Judge moved this Court and obtained the present Rule.
6. Mr. Md. Yahiya, the learned Advocate appearing on behalf of the petitioners before me, submits that the appeal which was preferred before the learned District Judge was not maintainable in view of the fact that Krishnapada, one of the auction--purchasers, was also a judgment-debtor and was not entitled to bid under subsection (2) of section 173 of the Bengal Tenancy Act. In support of his contention Mr. Yahiya referred me to a decision in the case of Juran Chandra Mondal and others v. Sushila Debi and others (7 DLR 382). In the said case Chowdury, J. Held that :- "Though the decision of the trial Court so far as it relates to the case coming under section 174 (3), Bengal Tenancy Act, is appealable and the learned Subordinate Judge can interfere in appeal, but his interference becomes infructuous on account of the decision of the trial Court in the present case on account of setting aside of the sale by the trial Court also under section 173, B. T. Act which is not appealable."
7. But in this case, we find that the application itself was filed under section 174 (3) of the Bengal Tenancy Act in which there is provision for appeal. Moreover, there have been cases where it has been found that under certain circumstances appeal in a case under sec--petition 173 of the B. T.
8. Act is also competent. In this respect I may refer to the decision in the case of SaPendra Nath Sen v.
9. Sudhanya Charan Das Naiya and others (AIR 1950 Cal. 166). In the said case Mookherjee, J., held that where an application to set aside an auction sale is made jointly under sections 173 and 174
(3) and the trial Court refuses to set aside the sale under either of the two sections, an appeal lies against order so far as it is directed against the order passed under section 174 (3) of the said Act.
10. In the instant case before me I also find that the application was filed by the petitioners under section 174 (3) of the B. T. Act and it is now contended that to a certain extent the said application may be treated as one under section 173 for the reason that Krishnapada, one of the auction- purchasers who was a judgment-debtor, took part in the bid in contravention of provision of subsection (2) of section 173 of the Bengal Tenancy Act.
11. Mr. Syed Muhammad A.I, the learned Advocate appearing on behalf of the opposite-parties, also referred me to the case reported in 28 C W N 144 Note portion and AIR 1935 Cal. 89, and contends that the appeal before the learned District Judge was maintainable in accordance with law. In the said case of AIR 1935 Cal. 89 a Division Bench of the Calcutta High Court held that an application by judgment-debtor to set-- aside the sale under section 173 of the Bengal Tenancy Act involved a question relating to execution and satisfaction of the decree as between the parties to the suit and section 47 of the Code of Civil Procedure was applicable in such a case and as such the appeal and second appeal were competent. I may mention here that in the said case it was also held that where the auction purchaser, against whom the application for setting aside the sale under section 173 was directed, along with some of the judgment-debtors, was guilty of fraud the applicants could avail themselves of the provisions contained in section 18 of the Limitation Act in maintaining their application. In the case of 28 C W N mentioned above I find that the appeal arising out of a proceeding under section 173 of the Bengal Tenancy Act was entertained and decided on merit although the question of maintainability of the appeal was not decided in the said case. So from what I have stated above I conclude that the appeal preferred before the learned District Judge was maintainable in accordance with law. The decision of the case reported in 7 D L R 382 in the facts and circumstances of the present case would not apply.
12. The next point which is very material in the present case and which has been urged by the learned Advocate for the petitioner is on the ground that the learned District Judge acted illegally and with material irregularity in the exercise of his jurisdiction in not setting aside the entire sale in view of the fact that no concise statement was served on the judgment-- debtors and Krishnapada, opposite-party No. 4 being a judg--ment-debtor was an auction-purchaser and Burna-Chandra and Krishnapada took active part in auction purchasing the land in the benatni of their wives and in failing to consider as to whether fraud could be construed from the said facts and circumstances of the case. Mr. Yahiya, the learned Advocate for the petitioners, con--tends that fraud in publishing and conducting the sale can be ascer--tained and construed from the said facts stated above and particu--larly because the judgment-debtor Purna Chandra took part in the sale in contravention of the provisions of section 173 (2) of the B. T. Act and that no concise statement was served on the judgment-debtors. In support of this contention Mr. Yahiya referred me to the decision in the case of Radha Kanta Gain v. Kunalbhushan Roy Choudhury and others (11 D L R 442). In the said case Chowdury, J. Held that a presumption that the concise statement was actually issued cannot be raised from the mere fact that from the order sheet it appears that there was an order for issue of concise statement but after that there was nothing to show whether in pursuance of the order of the Court the concise statement was issued or not and if issued in which address and whether it was served or not. Chowdhury, J. Further held in the said case that where concise statement was not issued due to landlords' fraud and fraudulent motive, the sale would stand vitiated and the petitioner would be entitled to get the benefit of section 18 of the Limitation Act. I respect--fully agree with the said decision of Chowdhury, J. From the judgment of the learned District Judge it would appear that he did not consider the aforesaid aspect of law which will be evident from his finding which is to the following effect:- "I hold that he (petitioner) must have known about the sale at least from his brothers soon after the sale was held, even though in the record there is no receipt to show that the concise statement were issued to the petitioners."
13. Moreover, the learned District Judge was not come; in saying that no information slip was filed to show that any information was sought from the Court by the petitioners inasmuch as it would be found from the record that the infor--mation slip was filed along with the application for setting aside the sale. It further appears that the learned District Judge concurrently found that admittedly the petitioner No. 3 was minor though he was descried in the execution case as major and that the postal receipts' would not show that the concise statements were issued in the name of the 3 petitioners but unfortunately the learned District Judge failed to consider the legal effect of the said facts as to non-issuance of concise statements on the petitioners and description of the petitioner No. 3 as minor although admittedly he was major and the 2 judgment-debtors took active part in the sale and the three auction-- purchasers are wives of judgment-debtors and one of the judgment-debtors is an auction-purchaser and other circumstances relating to the above facts which would clearly show that fraud was perpetrated against the petitioners in publishing and conduct--ing the sale in question which was accordingly vitiated in law.
14. True it is that the sale took place on the 11th of November 1954, which confirmed on the 28th December 1954, and according to the petitioners they came to know about the sale for the first time on the 23rd January 1959 from P.W.2 Madar Gazi and thereafter from information slip which was filed along with the application for setting aside the sale on the 2nd February 1959. But if fraud is found to be perpetrated against the petitioners by the auction-purchasers along with one of the judgment-debtors who was also a decree-holder certainly the petitioners are entitled to get the benefit of the provision of section 18 of the Limitation Act and in that case the application for setting aside the sale in question would not be barred by limitation while considering this question of fact it became very important to notice that 2 judgment-debtors Purna Chandra and Krishnapada were themselves looking after the execution case and Purnachandra, who is opposite-party witness No. 1, was identifier in the service of the sale proclama--petition and Krishnapada, opposite-party witness 3, was the identifier in the service of the writ of possession and the said two gentle--men, although are judgment-debtors, did not prevent the sale rather they allowed it to be held while the auction purchasers their wives and moreover the auction purchasers Krishnapada was him--self a judgment-debtor though he was at the same time a decree---holder. I do not find any substance in the contention of Mr. Mohammad All when he submits that Krishnapada a judgment-- debtor being a decree-holder the matter should be distinguished in that sense. In this respect I may refer to subsection (2) of section 173 of the Bengal Tenancy Act which shows that the judgment-debtor shall not bid for or purchase a tenure o holding so sold and there has not been any distinction made a between judgment-debtor simpliciter and the judgment-debtor who might have been also a decree-holder. The language of the said subsection is very clear. One other aspect in this case in that the learned District Judge did not at all consider that when the opposite- parties wanted to show that the petitioners had earlier knowledge in respect of the sale onus was upon them to prove the said earlier knowledge by giving evidence in that regard and in the present case absolutely there is no evidence given by the contesting opposite-parties to prove that petitioners o had earlier knowledge in respect of the sale in question so as to disentitle them from the relief under section 18 of the Limitation Act. In this respect I may refer to the decision in the case of Jagiswa r Das v. Debnarain Roy and others (46 C W N 403), where in Handerson, J. Held:- ---if it is found that the auction-purchaser is a party to the fraud then the effect of such fraud will continue until the applicant's knowledge of the sale. If the auction-purchaser wishes to show that in fact the applicant had knowledge of the sale at an earlier date than that alleged in the application, the onus lies on him to prove such knowledge.--- However, both the Courts below have found that the petitioners are in possession of the lands in question and that fact would also show that they might be unaware of the sale prior to the date of knowledge alleged by them.