1. This appeal is from an order of the learned Subordinate Judge of Trichinopoly. in E.A. No. 8 of 1935 dismissing the appellant's application, under Order 21, Rule 90 and Section 47 of the Code of Civil Procedure to set aside a sale held in execution of the decree in O.S. No. 6 of 1927. The final decree in the suit was passed on 23rd February, 1933 and the sale was held on 28th November, 1934. Several irregularities were alleged on behalf of the judgment-debtor. The learned Subordinate Judge held that no irregularities had been made out and also held that the lands had been sold for reasonable prices and that therefore no substantial loss had been caused. He therefore dismissed the petition.
2. In appeal Mr. Sitarama Rao for the appellant has pressed before us strongly the contention that the sale was illegal. The sale was fixed for 21st November, 1934. On the 21st of November, 1934, the judgment-debtor put in an application under Order 41, Rule 6, Sub-rule (2) praying that the sale might be stayed for two months on the ground that appeals were pending against the final decree and from an order of the Court on the application to set aside the preliminary decree in the suit The learned Subordinate Judge dismissed this petition on 28th November, 1934, and the sale was held on the same day. Mr. Sitarama Rao referring to the wording of Order 41, Rule 6, Sub-rule (2) contends that the Court has no option but to grant stay of sale on such terms as to giving security or otherwise as the Court thinks fit. We think that this contention is well founded. Mr. Krishnaswami Aiyar for the respondent has referred us to a decision reported in Babu Harnarain Sahi v. Sadhu Govind Rai A.I.R. 1932 All. 551. In that case Mr. justice Kendall expressed the opinion that Sub-rule 2 of Rule 6 does not impose on the Court which ordered the sale an obligation to stay the same merely because the property which is to be sold is immovable property. With all respect to the learned Judge we are unable to agree. Sub-rule 2 of Rule 6 is quite clear that when an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale, shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. We can see no justification for supposing that this rule means anything else than what it says. Mr. Krishnaswami Aiyar points out the danger that the judgment-debtor will be in a position to paralyse the executing Court, that he will be able to lie by until the last moment, then come up just when the sale is going to take place and get it stopped. We think there is sufficient answer to this in the provision that the Court may impose such terms as to giving security or otherwise as it thinks fit. If the Court thinks that the application has been designedly delayed, the Court can deal with it by prescribing conditions. If the judgment-debtor appears only on the morning to which the sale is posted, the Court has a discretion to say for example, that the sale will be stayed if the judgment-debtor produced the amount for which the sale is going to be held within half an hour or one hour. There is no limit to the discretion of the Court in imposing terms and that the Court is not without power to deal with a vexatious judgment-debtor in this way if the Court is obliged to stay a sale when such an application is made is quite clear from the terms of Order 41, Rule 6, Sub-rule (2). The learned Judge was therefore wrong when on 28th November, 1934, he thought he had discretion to stay or refuse to stay the sale. When the Code says the executing Court shall not sell in certain circumstances and the Court nevertheless proceeds to sell, the Court has committed in our opinion, what is more than an irregularity. It amounts clearly to an illegality. The learned Subordinate Judge ought to have imposed whatever terms he thought He and if those terms were not complied with he could then have directed the sale to proceed. On this ground alone we think that this appeal must succeed. Moreover, we are of opinion that the learned Subordinate Judge acted unreasonably in declining any postponement of the sale. It was shown that the judgment-debtor had been appealing against earlier orders passed by the executing Court and had been applying to this Court to stay the sale and that her last application for stay had been dismissed on 20th November, 1934. In those circumstances it appears to us that the learned Subordinate Judge ought to have realised that there was no chance of selling this property to the best advantage since there must have been considerable uncertainty as to whether the sale would-or would not be held at all. It would have been quite easy for the learned Subordinate Judge to prescribe conditions which would have been satisfactory to the decree-holder. It was shown that after the decree was passed the decree-holder realised Rs. 14,000 towards the amount of the decree by consenting to sales by the judgment-debtor to third parties. The learned Subordinate Judge might, for example, have prescribed that the judgment-debtor should pay, say, Rs. 20,000, within a month and there seems to be no reason to believe that the judgment-debtor would not have been able to comply with some such condition as that. The learned Subordinate Judge was not, we think, justified in holding that the application to stay the sale was devoid of bona fides and was designed merely to cause delay.
3. Another irregularity which undoubtedly occurred in the proclamation of the sale was that the proclamation for the sale of lands in Athikudi was affixed to Survey No. 131/1, which was not an item of land proposed to be sold. In the circumstances of this case we do not consider that it was a material irregularity since there was another sub-division of the same survey number that was intended to be sold and we do not think that any intending bidder could have been misled by the mere affixing of the proclamation to a pole planted in Survey No. 131/1.
4. A more serious objection that Mr. Sitarama Rao has pressed before us is that the lower Court failed to consider the question whether it would not be better to sell the lands in small lots rather than in large lots. The extent sold was 67 acres in the village of Peruvalanallur (53.12 acres of nanja and 13-93 acres of punja) and 29 acres in Athikudi (21 95 acres of nanja and 7-26 acres of punja). The whole of the land in Peruvalanallur was sold as one lot and realised Rs. 60,000. The whole of the land in Athikudi was sold in another lot and realised Rs. 30,600. The judgment-debtor was contending from the beginning of the execution proceedings that the sale ought to be in small parcels and it appears that in April 1934 the learned Subordinate Judge directed the decree-holder to put in an estimate of the value of each item of the lands to be sold "in case the properties have to be sold in various lots." But when the proclamation came on to be settled in September 1934 the learned Subordinate Judge has recorded that the only point for determination was whether the prices given by the decree-holder should be accepted. This, of course, was incorrect because he had also to determine the other point which was still pressed by the first defendant that the properties ought to be sold in small parcels. We think this is a matter of importance because it is obvious that there are not many persons likely to bid for 67 acres of land at a time or for 29 acres. There must be a much large number of persons who are in a position to bid for parcels consisting of 1, 2, 3, 4 or 5 acres. Mr. Krishnaswami Aiyar for the respondent has endeavoured to persuade us that the learned Subordinate Judge had considered this point but we think it is quite clear from the terms of the order on 18th September, 1934, that he did not consider it at all. If he had considered it, it would be difficult to say that the sale in two lots instead of a large number of lots by itself constituted an irregularity. But we think there is good reason to believe that the sale in two lots has caused the prices realised to be less, considerably less, than they otherwise would have been. It is no doubt the case that the value of land was declining between 1929 and 1934. But we do not see reason to believe that it declined by so much as 50 per cent. There was very good evidence to show that nanja lands of similar situation and quality to those sold fetched over Rs. 2,000 per acre in 1929. There was some evidence about the sales of nanja lands both in Peruvalanallur and Athikudi even up to 1933 in which prices of nearly Rs. 2,000 per acre were realised. The prices actually fetched at the sale are approximately Rs. 1,000 per acre. It seems probable that if sold in small lots better prices could have been obtained.
5. Another objection taken by Mr. Sitarama Rao for the appellant was with regard to the misdescription of certain items of dry lands. For example Survey No. 140/1 in Athikudi was described as punja but as a matter of fact it consisted of a tope containing a large number of mango and cocoanut trees. Survey No. 249/21 was a similar tope. It was alleged that both these topes were close to house sites and could have been sold as building sites for a great deal more than their value as mere dry lands. Survey No. 22/3 it was shown contained a large number of clusters of bamboos. The attention of the executing Court was invited to these matters in April 1934 and in September when the terms of the proclamation were being drawn up the judgment-debtor reiterated the contentions raised, by her in April. It has often been pointed out that the duty of drawing up the proclamation is the duty of the Court. Therefore it is no answer to these objections to say that the decree-holder is free from blame or has acted bona fide. These misdescriptions are clearly irregularities which would be very likely to affect the prices realised. They come within Order 21, Rule 66(2)(e) being matters which the Court should bring to the notice of possible purchasers in order to enable them to judge the probable value of the property.
6. For these reasons we think this appeal must be allowed and the sale must be set aside. The appellant will recover her costs from the respondent.
7. In reselling the property we desire to invite the attention of the executing Court in particular to Order 21, Rule 64 from which it is clear that no more of the judgment-debtor's property ought to be sold than is sufficient to realise the amount due under the decree. This has a bearing upon the desirability of selling the property in small parcels a subject we have already dealt with.
8. The case having been set down to be spoken to this day, the Court made the following
9. We intended the appellant to recover costs both in the Court below and here.