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Mack, J.—This is an appeal by a judgment debtor in O.S. No. 8 of 1952 on the file of the Subordinate Judge''s Court, Madurai, to set aside an order by the learned District Judge of Madurai, Sri S. Rangarajan confirming, on 2nd February 1954, a sale held by the Central Nazir of the District Court in execution on 3rd October 1953, a date when there was no presiding District Judge in this Court. The history of this execution is unfortunate, many of the irregularities alleged being due to the fact that there was no District Judge of Madurai between 26th September 1953 and 26th October 1953, the date on which Sri Rangarajan assumed charge. The decree under execution dated 29th February 1952 was only for a sum of Rs. 3237. It would appear from the typed papers filed, nor is it disputed, that the Subordinate Judge, in execution proceedings directed against a rice mill and a house at Madurai, appointed a receiver who valued the property at Rs. 2,25,000 on 4th December 1952 and later at the instance of the decree-holder appointed a Commissioner who valued the rice mill alone at Rs. 1,60,000 on 24th December 1952, both valuations being subject to a mortgage of Rs. 50,000. It is not disputed that the mortgage was a comprehensive one and included also a house in Dindigul which was outside the jurisdiction of the Subordinate Judge of Madurai. it would appear that later the decree was transferred for execution to the District Court where E.P. No. 24 of 1953 was filed by the decree-holder for sale of all these three items subject to the mortgage, the decree-holder valuing them all in his petition at only Rs. 15,000. The record shows that the judgment-debtor was served by affixture as he refused service. He, however, obviously knew of the execution petition taken out, as will presently be shown. The District Judge fixing the upset price at Rs. 20,000 posted the sale to 14th September 1953, on which date he adjourned it to 25th September 1953. On 24th September 1953 the judgment-debtor (appellant) filed E.A. No. 815 of 1953 for adjournment of the sale for 14 days on the ground that he had filed I.P. No. 18 of 1953 in the Subordinate Judge''s Court, Madurai, in older to enable him to move the Insolvency Court for the appointment of a receiver under S. 52 of the Provincial Insolvency Act. On 24th September 1953 it was reported to the District Judge that the Subordinate Judge had dismissed the application for the appointment of an interim receiver, but represented that an appeal against this dismissal was contemplated. The District Judge adjourned the sale for a week to 3rd October 1953 and then handed over charge two days later on 26th September 1953 to the Principal Subordinate Judge who was placed in charge of the District Court. There was no District judge as such in charge of the District Court till 26th October 1953 when Sri S. Rangarajan took over charge.
In the mean time the Central Nazir complied with the judicial orders passed by the previous District Judge Sri P. Ramakrishna Aiyar and conducted the sale on 3rd October 1953. The bid list shows that there were only two bidders, the Advocate bidding on behalf of the decree-holder against the auction purchaser who is the Madurai-Ramnad Co-operative Society. The bidding commenced with the upset price of Rs. 20,000, the highest bid recorded being Rs. 30,550. On that date the Sheristadar of the District Court passed an order adjourning the sale for conclusion to 30th October 1953. In the meantime the judgment-debtor filed two applications, (1) E.A. No. 842 of 1953 on 5th October 1953 to declare the Central Nazir''s sale null and void as on that date there was no presiding officer of this Court and (2) E.A. No. 853 of 1953 on 19th October 1953 praying that the bid of the auction purchaser be not accepted on the ground that it was unconscionably low. The District Judge dismissed both these applications on 2nd February 1954 and confirmed the sale inter alia on the ground that it has not been shown that the purchase was mala fide or in any way irregular. In a separate order in E.A. No. 842 of 1953 he held, following Rangpur Loan Office Ltd. v. Tarit Bhushan Ray ILR (1989) 1 Cal. 580 and Kavu Patteri v. Mana Naicka ILR 1953 Mad. 1143 = 66 L.W. 813, that the Nazir had power to hold the sale on a date on which the Judge was absent, in the later decision a sale was fixed for the 24th January 1942 which turned out to be a penultimate Saturday, and a Court holiday and it was held on the following Monday, the next working day. In the suit filed to set aside the sale on the ground that it was a nullity, it was held that there was only an irregularity and not an illegality which rendered the sale void and further more, that the remedy open to the party aggrieved was an application to set aside the sale under O. 21, R. 90, C.P. Code on proof of substantial injury resulting there from.
No case placed before me covers a case such as this where a Court has been without a Presiding Judge for a substantial period. Even during a period of this kind there is I think nothing to prevent the Central Nazir from holding the sale on the day fixed by judicial order. It is in fact his duty to do so and to record the bids under form No. 29 of Appendix E under O. 21, R. 66, C.P.C. The sale, however can only be closed by a judicial order accepting the highest bid and declaring the purchaser. Unless this is done, the Court sale cannot be held to be judicially concluded. This has been laid down in Surendramohan Sarhar v. Manmathanath Banerji 58 Cal. 788, and Jaibahadar Jha v. Matukdhari Jhan 11 Pat. 548 Bench decisions of the Calcutta and Patna High Courts with which, with respect, I am in complete agreement. The power of the Court to refuse to accept a bid is not limited by the condition that the highest bidder shall always be declared the purchaser, if in the opinion of the Court or the officer holding the sale the price offered appears so clearly inadequate that it is advisable to refuse to do so. In fact there may be circumstances under which it would be wrong on the part of the Court to accept a bid which is prima facie neither honest nor fair. The Judge presiding over an executing Court is not a mere mechanical machine who is obliged in all circumstances merely to register the highest bidder as the successful bidder to whom the sale must in any event be knocked down.
The learned District Judge has not paid any attention in his orders to the previous valuations of the receiver and commissioner appointed in the Subordinate Judge''s Court, although there is reference to these valuations in the affidavits filed in support of these applications. O. 21, R. 66 (2) (e) also requires, by an amendment applicable to Madras, that in a sale notification the value of the property as stated (i) by the decree-holder, and (ii) by the judgment debtor shall be notified. In this case the judgment debtor made no appearance before the sale notification was settled, although he did make a subsequent appearance and asked for an adjournment of the sale. O. 21. R. 66 (2) (f) also requires, every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property to be notified. On Prima facie considerations, the decree-holder estimated the value of this property at only Rs. 15,000 in striking, if not glaring, disregard of the valuation estimates made by the receiver and commissioner appointed in the Subordinate Judge''s Court; The grounds on which the learned District Judge fixed the upset price at Rs. 20,000 i.e., only Rs. 5,000 more than the decree-holder''s valuation are not apparent. There was no valuation at all made even by an Amin or Court Officer appointed for the purpose.
One of the main grievances of the learned Advocate for the appellant against the District Judge''s order of confirmation of sale is that it has been made straightaway without even first declaring the auction purchaser as the successful bidder under O. 21, R. 84 and without allowing a period of one month within which an application may be made to set aside the sale under R. 89, 90 or 91. This it, in my opinion, a serious illegality which violates the rights of the judgment debtor who has 30 days'' time from the ''''date of the sale" within which to move the Court to set the sale aside on grounds of irregularity or fraud. The two applications E.A. No, 842 of 1953 and E.A. No. 853 of 1953 were primarily intended to stop judicial acceptance of the highest bid which was necessary for completion of the sale. The result of the order passed by the learned District Judge straightaway confirming the sale after dismissing E.A. Nos. 842 and 853 of 1953 has meant that the auction purchaser has taken possession of all the property which he purchased through Court and in C.M.P. No. 1877 of 1954, an application for stay by the judgment debtor to this Court, interim stay was made absolute on 7th April 1954 only as regards the residential house at Madurai for which the appellant was directed to pay the auction purchaser Society Rs. 50 a month as rent. Subsequent to this order, it is common ground that the Society took possession of the rice mill and the other house in August 1954 .
An obvious irregularity in this case is the order passed by the Sheristadar of the Madurai District Court on 3rd October 1953 adjourning the sale "for conclusion" to 30th October 1953 as in the absence of a Presiding District Judge, the Principal Subordinate Judge had been appointed in administrative charge and the Sheristadar should obviously have placed these papers before him for an order which the Sheristadar was quite incompetent to pass. Incidentally had this been done, the Subordinate Judge who may have had knowledge of the previous valuations by the receiver and the commissioner in execution in his Court, of this same property may have brought the very low bid in this case to notice. Ordinarily, however, in such a case the order of the Sheristadar, adjourning the sale for conclusion in the absence of a Presiding Judge until one is appointed, could be placed in the category of an irregularity and not one which necessarily results in substantial lots to the judgment-debtor.
Taking the history of the execution sale, the learned District Judge would have exercised a proper discretion, if he had, on the mere ground of an excessively low valuation by the decree-holder in his execution petition, in view of the valuations by an independent receiver and commissioner made a few months earlier in the Subordinate Judge''s Court, declined to accept the bill at the sale held on 3rd October 1953 and if he had directed a fresh sale on a notification embodying those valuations, in addition to the judgment debtor''s valuation as required by O. 21, R. 66 (2) (e).
Another point which cannot not be taken into consideration is the small amount of the decree for a little over Rs. 3000 sought to be executed against property the value of which is admittedly far in excess of this sura. It is true that the three items of property were covered by one mortgage and the decree-holder was strictly acting in pursuance of his legal rights. But law and equity require the decree-holder in a case of this kind where he seeks to execute a comparatively small decree against extensive immoveable property, to see that the immoveable property is given a reasonably fair valuation, particularly when the property has been valued in execution at his own instance at a price far higher than he values it in execution before another Court.
A fresh sale will be notified with an upset price of Rs. 30,550 and a starting bid of the auction purchaser for this amount. The notification will also contain as required under O. 21, R. 66 (2) (e) the valuation of the judgment-debtor based on previous valuations by the receiver and commissioner appointed by the Subordinate Judge''s Court whose estimates will also be incorporated in the sale notification. The learned Advocate for the auction purchaser urges that he has been put to some expenses in replacing missing parts of machinery in the mill. He is at liberty, in the event of his not being the successful bidder in the ensuing auction to make a claim before the executing Court for reimbursement for loss he has sustained out of the sale proceeds.
The appeal is allowed and the execution sale is set aside. I direct the parties in this appeal to bear their own costs.