1. This is an appeal from the order of the First Class Subordinate Judge, Thana, dismissing the appellant's application under Order XXI, Rule 90, to set aside an execution sale. There were disputes between the plaintiff and several defendants including the appellant about certain money dealings. These disputes were submitted to arbitration and an award was made which directed that the defendants should make certain payments on certain dates and that in default of those payments certain immovable property of, the defendants was to be put to sale. The award was filed in Court and a decree was passed in terms thereof. The date of the decree was October 30, 1918. There were various darkhasts with which we are not concerned, and finally on September 23, 1926, the plaintiff applied that the property should be sold-the defendants not having paid the money due in accordance with the decree. Notice was issued to the appellant but he failed to appear. Accordingly, some of the property, consisting of some salt pans, was sold on March 30, 1927, and other property, consisting of lands, was sold on March 31, 1927. There was one bidder for the salt pans, no bidders for the land. In accordance with the rules the final bids were taken in Court on April 5, 1927, but the Court did riot accept the bids. On April 7, the plaintiff applied for permission to bid himself. His bids amounted to Rs. 5,280 for the salt pans and Rs. 800 and Rs. 500 for the lands. These bids were accepted.
2. On April 12, 1927, the defendant applied for setting aside the sale. He then alleged that he was an agriculturist, and the first point urged in support of the appeal is that as he was an agriculturist (and the trial Court on the strength of the affidavits put in by him has held that he was,) therefore, the Court had no jurisdiction to sell the property but should have transferred the execution of the decree to the Collector in accordance with the rules of Government for dealing with the property of agriculturists. The difficulty is, however, that the defendant was described in the decree not as an agriculturist but as a trader. It has been stated that he put forward his agricultural status at an early stage in the execution proceedings, but there is no evidence of this. As already stated he failed to appear in answer to the notice about the sale, and so far as the record shows it was not until after the sale had been completed that he came to Court and claimed to be an agriculturist. For that reason the trial Judge held that his plea of status was at that stage inadmissible. He has relied upon the ruling reported in Behari Singh v. Mukat Singh I.L.R. (1905) All. 273. That was a case in which the facts were somewhat different, because there had been an inquiry held by the Court as to the nature of the property, as affecting the sale procedure, which in the present case had not been made. But the learned Judges who decided that case referred to a decision of the Privy Council in T.R. Arunachellam Chetti v. V.R.R.M.A.R. Arunachellam Chetti and that, it appears to us, is entirely in point. The remarks of their Lordships of the Privy Council referred to were (p. 174):
The judgment-debtors knowing, as they must have known, what the description was in the proclamation, allow the whole matter to proceed until the sale is completed, and then ask to have it set aside on account of this, as they say, misdescription. It appears to come within what was laid down by this Board in Olpherts v. Mahabir Pershad Singh that if there was really aground of complaint, and if the judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the execution creditor or decree holder might be perfectly ignorant-that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated.
3. That appears to us to be precisely the position in the present case, and as regards this point, therefore, we agree with the trial Court.
4. Secondly, it was contended that the sale was bad and ought to be set aside on the ground that the bid was too low. It has been urged that the lowness of the bid is an indication of fraud, and would, therefore, justify the Court in setting aside the sale under Rule 90. It appears to us, however, that there is no satisfactory evidence to show that the bid was as a matter of fact unreasonably low. The only tangible evidence is that of a Panchnama made several years ago at an earlier stage of the proceedings which placed the value at a higher figure. It is quite likely however that the value has decreased since then. We do not consider therefore that there is any force in this contention either, for we are quite unable to find that there was anything in the nature of fraud about the proceeding.
5. The third argument put forward is that the sale of this property was contrary to Rule 72A of Order XXI, made by the High Court of Bombay in 1917. This contention, in our opinion, ought to prevail. The rule in question provided :
If leave to bid is granted to the mortgagee of immovable property, a reserve price as regards him shall be fixed of not less than the amount then due for principal, interest and costs in case the property is sold in one lot, and not leas in respect of each lot (in case the property is sold in lots) than such sum as shall appear to be properly attributable to it in relation to the amount aforesaid.
6. The rule was subsequently amended so as to make the provision apply 'unless the Court otherwise thinks fit.' But at the time in question the provision was mandatory. The sale of this property, which was for a smaller amount than the amount due to the mortgagee at that time, was plainly and admittedly in contravention of this rule, and in our opinion this was a material irregularity for which the sale could be set aside under Rule 90.
7. The learned pleader for the respondent has however stated on behalf of his client that he agrees that satisfaction for the full amount should be entered, and we think, therefore, that instead of setting aside the sale the proper course will be to proceed under 1 Order XLI, Rule 33, and make the order which the lower Court under the circumstances ought to have made, that is to say, we direct that the property should be sold to the respondent for the amount due to him at the time of the sale for principal, interest and costs. The appellant will get his costs in this appeal. There will be no order as to costs in the lower Court.