J.K. Misra, J.
1. This petition in revision is against the appellate Order o the learned Subordinate Judge, Puri, setting aside the order of the executing court and dismissing the petitioner's petition under Order 21, Rule 90, C. P. C. The petitioner is the judgment-debtor and the opposite party is the decree-holder-auction-purchaser. A two storeyed building of the petitioner in the town of Puri had been attached in the execution proceeding and one of the dates for sale had been fixed against 20-6-56.
On that day certain part payment was made by the petitioner, and the petitioner prayed for time, waiving issue of fresh sale proclamation. The learned Munsif fixed 20-7-56 for payment of the balance and ordered that in default of such payment the said sale would take place at 12 noon of that date. On 20-7-56, the petitioner filed a petition for time and again waived issue of fresh sale proclamation, and the court allowed time till 20-8-56 for full payment of the balance. There was no express order of the court that failing payment sale would take place that day.
Again, on 20-8-56, the petitioner made a part payment and filed a petition for time waiving issue 'of fresh sale proclamation and the court granted him time as a last chance till 21-9-56, but the court did not expressly order adjournment of sale to that date. On 21-9-56, another petition for time was filed on behalf of the petitioner waiving issue of fresh sale proclamation. This petition was rejected and the Court fixed the next day for sale; but no hour was fixed by the court for holding the sale. The sale was conducted the next day. The decree-holder was the only bidder in the auction sale and the sale was knocked down in his favour for Rs. 5000/-.
2. The petitioner's case in his petition under Order 21, Rule 90, C, P. C. was that the building sold for Rs. 5000/- was worth Rs. 50,000/-; and that there was material irregularity in publishing and conducting the sale inasmuch as there was no express order of the court on 20-7-56 and 20-8-56, that sales would be conducted on the adjourned dates in default of payment and as such a fresh sale proclamation was necessary; and that no time was fixed in the order dated 21-9-56 as to when the sale was to take place the next day, as a result of which no other bidder participated in the auction.
3. The learned Munsif accepted the petitioner's contention that the absence of issue of a fresh sale proclamation and not fixing the hour for sale amounted to material irregularity. As to whether the judgment-debtor had sustained substantial injury by reason of such irregularity, the learned Munsif observed. 'The property is in Puri town. There is sufficient reason to believe that some purchasers would have come to offer bid if they had known about the date of sale, It cannot be said how high the bids might have gone it due publicity would have been given to the sale. Hence I find that by such irregularity the judgment-debtor has suffered substantial injury.' It was the petitioner's case that the building was worth Rs. 50,000/-.
The decree-holder's contention had been that the building was an old and dilapidated one and it had fetched in the auction sale its proper price and no finding on this point was recorded by the learned Munsif. An objection had been taken on behalf of the decree-holder before the learned Munsif on the basis of Order 21, Rule 90 (1) Proviso (i) (a) (Patna Amendment) that the ground on which the judgment-debtor sought to set aside the sale could have been but was not put forward by him before the sale was concluded, and as such his petition under Order 21, Rule 90, C. P. C. was not maintainable. The learned Munsif rejected this contention observing, 'Order No. 45 dated 22-9-56 does not indicate that the parties were called. It also does not indicate at what time the sale was made. The sale being made on the date following the date on which the judgment-debtor had applied for adjournment, it cannot be said that judgment-debtor could point out to the court about the irregularity of the sale'.
4. In appeal, the learned Subordinate Judge did not at all consider the question as to whether the petitioner had sustained substantial injury by reason of the alleged irregularity. As to the question of the necessity of issuing a fresh sale proclamation, in the absence of express orders on the relevant dates, the learned Subordinate Judge was of the view that the orders of the relevant dates implied that sale would be held on the adjourned dates and that was evidenced by the fact that on those dates the petitioner filed petitions waiving issue of fresh sale proclamation.
As to the omission of fixing the hour of sale, the learned Subordinate Judge, relying on Ibne Ali v. Dharam Kirit Saraii, AIR 1935 All 182, observed,
'The mere omission to specify the hour to which the sale was kept adjourned is not a material irregularity.'
Regarding the question as to whether the petitioner could have brought the alleged irregularity to the notice of the court before the sale was concluded, the learned Subordinate Judge was of the view that when the judgment-debtor was present in the court on 21-9-56 and filed a petition for time waiving issue of fresh sale proclamation, he would be deemed to have been aware of the fact that the sale had been ordered for the next day, and as such he could have brought the alleged irregularity to the notice of the court then and there.
5. The learned counsel for the petitioner does not seek to challenge the finding of the appellate court that no fresh sale proclamation was necessary in the circumstances of the case. His contentions were (1) that since the hour for sale had not been fixed as a result of which nobody attended the auction sale except the decree-holder, that amounted to a material irregularity and (2) that the petitioner had no opportunity to bring to the notice of the court the alleged irregularity before the sale was concluded.
6. Coming to the first contention, Order 21, Rule 69, C. P. C. lays down that the court may, in its discretion, adjourn any sale to a specified day and hour. So, specifying the hour for sale is a necessity as considered by the legislature, and though adjournment is at the discretion of the court, not so is the mention about the date and hour, as is sought to be contended on behalf of the opposite party. Intending bidders, if they do not know the hour for sale, are not expected to keep watching in the court premises for the whole of the day. AIR 1935 All, 182, on which the learned Subordinate Judge relied, does not specify any reason and simply relies on Chuttan Lal v. Md. Ikram Khan, AIR 1933 All 546, in which it has been observed,
'In considering Rule 69 the main question is whether, although the omission to specify the hour may be an irregularity, it is a material irregularity when the judgment-debtor has agreed that there should be no proclamation of sale at all. For apart from the question that there is a definite rule (of the Allahabad High Court) in existence which lays down that sale shall commence at noon and that, therefore, the intending purchasers presumably know the usual hour, the failure to mention the exact hour in the order ceases to be a material irregularity when it is agreed that no proclamation or notice of the sale would be issued. When there is to be no fresh announcement, it cannot be held that the sale is vitiated because in the order directing adjournment the Court had omitted to mention the exact hour at which the sale should take place on the next day, the omission being presumably due to the fact that there was a rule in existence which fixed the time.'
Evidently what influenced their Lordships in horning to the aforesaid conclusion was fhat intending purchasers were presumed to know the usual hour fixed according to the rule of the Allahabad High Court. The case does not indicate if other bidders did or did not participate in the auction. On the contrary, it has been held in Bhikari Misra v. Rani Surja Moni, 6 Cal WN 48,
'When a sale is adjourned under Section 291, C. P. C. it is necessary to mention the hour of sale and its non-specification is a material irregularity within the meaning of Section 311, Code of Civil Procedure fold Code). The fact that the judgment-debtor consents that the sale should be held without the issue of a fresh proclamation does not indicate that he waives the non-specification of the hour of the day to which the sale is adjourned, inasmuch as he has no control over the form of the order of the court'.
In Shila Pal v. Comilla Banking Corporation, AIR 1945 Cal 434, relating to a case in which the date but not the hour had been fixed, his Lordship B. K. Mukherjea took the view.
'This is a material irregularity, for it is incumbent upon the court to specify both the day and the hour under Order 21, Rule 69 C. P. C.'
That was a case in which no other bidder except the decree-holder was present at the time of the sale. Hence I hold that non-mention of the hour for sale did amount to a material irregularity.
7. Coming to the second contention, the relevant Patna amendment to Order 21, Rule 90 C. P. C. is as follows :
'(i) Provided that no application to set aside a sale shall be admitted :
(a) Upon any ground which could have been, but was not put forward by the applicant before the sale was concluded,X X X X'
This amendment came into force in 1942. Prior to that there had been a corresponding amendment which had been brought into force in 1936, and that was as follows:
'Provided that no application to set aside a sale shall be admitted unless it discloses a ground which could not have been put forward by the applicant before the sale was concluded.'
The intention of both the amendments was obviously the same, though the subsequent amendment was made in clearer terms. The import of the 1936 amendment had been the subject matter of an, unreported decision of the Patna High Court in Appeal from Original Order No. 97 of 1939. In that case, an irregularity in respect of publishing and conducting the sale was relied upon in the petition under Order 21, Rule 90, C. P. C. and objection was taken in view of the amendment that that irregularity should have been brought to the notice of the Court by the judgment-debtor before the sale was concluded. His Lordship Manohar Lall observed:
'There is no procedure prescribed by the Code by which he (the judgment-debtor) can raise this question usefully at an earlier stage, namely, before the sale was concluded. Supposing this question had been raised and had been decided adversely to the appellants (the judgment-debtors), the appellants had no remedy to have the decision of the learned Subordinate Judge rectified in appeal, because such an order is not an appealable order.
To this Mr. Manuk (lawyer for the respondent) suggested that the object of requiring the appellant to raise this question earlier is to give notice to the decree-holder of such an irregularity, and if he still persists in the sale being conducted notwithstanding the suggested irregularity, he takes a risk. I am unable to agree with this suggestion of the respondents. In my opinion the true intention of the amendment seems to be that all objections which precede the actual issue of a sale proclamation should not be allowed to be raised in an application under Order 21, Rule 90 at a late stage unless the appellant could not raise them earlier.
The objections depending on the service of the sale proclamation can well await the result of the auction sale. For these reasons, I am of opinion that the appellants were not bound to raise this question at an early stage'.
Mr. Dasgupta's contention before me was more or less on the line taken in the aforesaid case by Mr. Manuk. Even assuming that the judgment-debtor has an obligation under the 1942 amendment to inform the court any irregularity within his knowledge in respect of conducting the sale before the sale is concluded, as the wording of the amendment stands, it must be shown by the decree-holder that conscious of the irregularity, the judgment-debtor suppressed the same from the notice of the court before the sale was concluded.
In the present case, all that is found from the order-sheet is that on 21-9-56, the judgment-debtor being absent due to illness, for which he had filed a medical certificate, his lawyer had filed an application for time waiving issue for fresh sale proclamation. There is nothing in the order-sheet to show that the order of the court rejecting, the application and fixing the sale for the next day was passed in the presence of the lawyer. There is no justification for the appellate Court's view that because the petitioner or for that matter his lawyer had filed a petition in court, he shall be deemed to have knowledge of the order that was passed by the court. So, I hold that the petition is not hit by the amendment referred to.
8. As I have said, the learned Munsif did not come to any finding as to whether the building in question had been sold for its proper value, as alleged by the decree-holder, or for a grossly low price as put forward by the judgment-debtor. His assumption was that substantial injury had resulted to the petitioner since, nobody else participated in the auction sale. On the other hand, the learned Subordinate Judge did not at all touch this question. A material irregularity by itself is not sufficient to set aside an auction sale unless the judgment-debtor has sustained substantial injury by reason of such irregularity.
9. In the result, the petition is allowed and the orders of both the courts below are set aside, and the case is remanded to the court of the learned Munsif to take further evidence, and decide whether the material irregularity has resulted in substantial injury to the petitioner, and dispose of the case accordingly. Opposite party is to pay the cost of this revision to the petitioner. The costs of the courts below will abide the result. Hearing fee Rs. 32/-.