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Judgment
Wort, J.—This is an appeal against the order of the Subordinate Judge dated 19th December 1932, in an application under Order 21, Rule 90, Civil P.C. setting aside a sale in execution of a decree on the ground of irregularity. The decree-holder was the purchaser in the execution sale. At the hearing it appears that three preliminary points were taken. The first one was that according to the valuation set down in the proclamation the sale was liable to be vacated. There were two other grounds which it is unnecessary to mention as the learned Judge disposed of those in favour of the decree-holder. The ground upon which he based his decision was the one which I have mentioned. It would appear that in the sale proclamation two values were included, one was described as the approximate value, which in fact was the value-placed upon the property by the decree-holder himself and the other was the value placed upon the property by the Court.
This procedure appears to have been adopted in all the cases excepting with regard to one property as regards which only the court''s valuation was indicated. The learned Judge seems to have been of the opinion that this was an irregularity which vitiated the whole proceedings and relied upon certain observations in the decisions of this Court upon which he bases his conclusion.
One of those was the case of Beni Prasad v. Edal Singh 1918 Pat 373, where Atkinson, J., observed that the inclusion of two valuations in a sale proclamation was calculated to mislead intending purchasers. That may be so or might not be so according to the circumstances of the case. But that decision is no authority for the proposition that the mere fact that the inclusion of two valuations as was done in this case vitiates the proceedings. The judgment-debtor came to court on application under O.21, Rule 90 and even assuming that two valuations were placed in the sale proclamation which was an irregularity as contemplated by Order 21, still it was necessary for the judgment-debtor to show that by reason of the irregularity he had sustained some substantial injury and it was for him to prove that, but atleast the decree-holder should have had an opportunity to show that no such injury had been sustained: in other words it was impossible for the learned Judge in the Court below to decide the application before him without allowing the parties to adduce evidence.
The learned Judge has decided the case in the absence of evidence by the parties although it appears they wished to call evidence. In those circumstances as I have said the order cannot stand. The order of the learned Judge must be set aside and the case remanded to him to be heard and determined according to law.
The appeal will be allowed with costs and the execution case will be restored.
Agarwala, J.
I agree.