TMI Blog1957 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ond respondent in the lower Court). Then the petitioner filed an application to set aside the sale beyond 30 days accompanied by an application to excuse delay under Section 18 of the Limitation Act. In order to attract the provisions of Section 18, the petitioner contended that there was a Panchayat at the instance of some mediators between himself, the decree-holder and the mortgagee. Valliakkal and others. In that Panchayat it is stated that it was agreed that Sellappa Gounder, the Sammandhi of the petitioner should purchase the properties for ₹ 10,000/-. Sellappa Gounder wanted three months' time to enable him to get the necessary funds for the purchase. The first respondent decree-holder is stated to have ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 18 of the Limitation Act would not be attracted I agree with the lower, court in regard to its conclusions on both these points and consider that its decision rejecting the application is irreproachable. Here are my reasons. After discussing the evidence on Point 1, in para 5 His Lordship concluded.) Therefore, looked at from any point of view this alleged Panchayat has been evolved in order to make out a plausible case for attracting the provisions of Section 18 of the Limitation Act. Point 1 was rightly found against the petitioner. 6. Point 2: Section 18 of the Limitation Act is an enabling section which postpones the starting point of limitation for suits and applications like applications to set aside execution safes w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing to say: ''Fraud affects limitation only where it prevents a person from knowing of his right or the title on which the right is founded; it means active deceit in defrauding or endeavouring to defraud a person of his rights by artful device, that is, designed fraud by which a party knowing to whom the right belongs, conceals the circumstances giving that right, i.e., the title to the right to sue. To constitute fraud there should be an abuse of confidential position, come intentional imposition, some deliberate concealment of facts, a designed fraud by which a party knowing to whom the right belongs conceals the facts and circumstances giving that right. The knowledge required by the section is not mere suspi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation (5th Edition), Volume I, page 283 as follows:-- The onus is on the person seeking the protection of Section 18 to prove the fraud. Moreover, by reason of Order 7, Rule 6, C. P. C., an exemption on the ground of fraud must be claimed in the plaint. Fraud must be proved and cannot be inferred, and the Court must not presume its existence from certain suspicious circumstances. Charges of fraud and collusion must, no doubt, be proved by those who make them,.....proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order 21, Rule 90 of the Code of Civil Procedure that the purchaser should also be guilty of fraud. A contrary view has been expressed in Sailendra Nath v. Sudhanya Charau, (A), that it is not necessary for the applicability of this section that the purchaser should also be guilty of fraud. Where the decree-holder is not guilty of fraud, but the auction purchaser is does the section apply so as to extend the time for an application against either to set aside the sale? There is a difference of opinion on this point. It was held in Azizannessa v. Dwarika Prasad, AIR 1925 Cal 1227 (B), that it will not apply, while a contrary view has been held in P. Venkanna v. C. Venkanna, (C), and Pulla Reddi v. Pattabhirama Reddi, AIR 1933 Mad 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
