Babu Nand Kishwar Sahai vs Kedar Nath

Atkinson, J.—The plaintiff in this suit was a creditor of the defendant. He obtained a decree for Rs. 5,000 against the defendant on the 2nd July 1915. On the 27th September 1915 the plaintiff applied for leave to issue execution on foot of the decree which he had already obtained. The defendant was possessed of two denominations of property lot No. 1. being a 5-annas 4-pies share of Mouza Kurmawan and lot No. 2 being a 2-annas 8-pies share of Mouza Hasanpur. The decree-holder valued lot No. 1 at Rs. 2,000 and lot No. 2 at Rs. 500. Matters proceeded, and sometime prior to January 1916, the sale proclamation had issued. On the 21st January 1916 the judgment-debtor filed a petition alleging that the valuation stated in the sale proclamation was erroneous; that it was far too low, and the property was of greater value. The judgment-debtor suggested that the value of lot No. 1 was Rs. 40,000 and the value of lot No. 2 was Rs. 3,000. In that petition no suggestion was made by the defendant directly or indirectly that the sale proclamation which had been issued had not been properly served; and, as far as I can trace, no attempt was made at any time to suggest any defect in the service of the sale proclamation, prior to the application that was made under Order XXI, Rule 90, to sat aside the sale that took place on the 18th July 1916. The learned Subordinate Judge disposed of the defendant''s application with regard to the question of valuation, and directed that the value of the property specified by the decree-holder and by the judgment-debtor should be set forth in the proclamation, and this was done and by consent of the parties no fresh sale proclamation was issued. On the 15th May 1916 the judgment-debtor prayed for two weeks'' time, waiving, as he stated in his petition, "any objection as to irregularity and inadequacy of price," and asking that the sale might not take place until the 31st May 1916. Accordingly that application was granted, and the date of sale was fixed for the 31st May 1916. On this date the defendant in his petition again recognised the validity of the sale proclamation; and raised no objection as to service and waived all objection as to any irregularity that might exist as to the manner in which the valuation Was stated in the proclamation. The defendant further applied on the 1st June under Order XXI, Rule 83, for further time to enable him to pay off the decretal sum that was due to the plaintiff. This application was also granted; and time was given up to the 26th June 1916. On the 23th June 1916 a further application for time was made by the judgment-debtor asking that the sale might again be postponed and the defendant might be granted time to enable him to pay off the decretal sum. This application the learned Judge also granted, and the sale was finally postponed to the 18th July 1916. On that date the judgment-debtor-defendant was unable to find or raise the money to pay off the plaintiff''s decree, and accordingly the sale took place, and the plaintiff-decree-holder became the purchaser at the sum of Rs. 5,000 for lot No. 1 and Rs. 980 for lot No. 2. Each application for adjournment was granted and in consideration of the adjournment being granted, the defendant averred that he would raise no objection as to any irregularity in connection with the issue of a fresh sale proclamation after the valuation had been revised, in the manner which I have stated, in March 1916. It would be quite impossible to hold that the defendant had not completely waived and abandoned his right to have a fresh sale proclamation issued. His conduct was only inconsistent with his waiving the necessity of a fresh sale proclamation after the 11th of March 1916. Therefore, so far as that matter is relied upon as an irregularity for impeaching the sale that was effected it is utterly without substance or foundation. The only other irregularity which is suggested is, that the notice of the proclamation was not duly served. This point, as I have already stated, was not taken at any time prior to the application which was made before the learned Judge to set aside the sale on the 16th August 1916; and it appears to us from the evidence and the admission contained in the judgment-debtor''s first petition that the proclamation was duly served in the ordinary way prescribed by the rules; and in respect of that contention the defendant has no ground for objection. The present application was made on the 16th August 1916 to set aside the sale on the ground of material irregularity which caused the defendant-judgment-debtor substantial injury; and the two grounds alleged to support his application are, firstly, the material irregularity in setting forth the valuation of the property, and secondly, the non-service of the notice of the proclamation. The learned Judge considered the matter very carefully and he came to the conclusion that the defendant had no ground for complaint whatsoever; that he was shown every consideration; that he had waived expressly the necessity of any fresh sale proclamation being issued in March, and that in point of fact notice had been duly served. In the view that the learned Subordinate Judge took and the decision at which he arrived, I think he was perfectly correct. We are satisfied that the sale proclamation was duly served and that no irregularity can be relied upon in respect of the non-issue of a fresh sale proclamation. It is stated that it was wrong in effect to have stated two separate valuations in the proclamation, the decree-holder''s valuation and the judgment-debtor''s valuation. I do not think that it was wrong. Mr. Krishna Sahai relies upon it as an irregularity, having regard to the recent decision of this Court in the Full Bench case reported as Raghunath Singh v. Hazari Sahu 37 Ind. Cas. 872 : 2 P.L.J. 130 : 1 P.L.W. 111 (1917) Pat. 105 but at the time that the learned Judge did enter the two valuations in the proclamation it appears that it was thought to be the practice recognised for some time in this province and occasionally acted upon by some and not by others. Therefore, I do not think that there was any irregularity at all; but in this respect apart from that, assuming that there was an irregularity, in my opinion the judgment-debtor has completely waived this point as a valid ground of objection. It is essential for the judgment-debtor, in order to succeed in an application under Order XXI, to show that the inadequacy of the prices stated in the sale proclamation was caused in consequence of the irregularity. There is not a scintilla of evidence on the record to suggest that the failure to issue a fresh sale proclamation in any way caused an inadequacy of bidding at the sale, or that the judgment-debtor was prejudiced in any way whatsoever by any material irregularity in the publishing and conduct of the sale. In my opinion there was no irregularity and this application must therefore, be dismissed with costs, measured at three gold mohurs.

Chapman, J.

I agree.