1. These are appeals against the order of the lower Court setting aside a Court sale in execution. The lower Court in its order points out several things, in connection with the sale, which it calls suspicious, and concludes that the property has been sold for an unconscionably low price, and on those two grounds, it has set aside the sale. Now obviously this order does not in any way comply with the requirements of Order 21, Rule 90. Schedule 1, Civil Procedure Code, under which the first thing to be proved is that there was a material irregularity or fraud in publishing or conducting the sale, and next that the irregularity or fraud so proved caused substantial injury to the parties, who seek to set aside the sale. We are unable to find any irregularity or fraud, and certainly the lower Court does not record that it found any.
2. The learned Subordinate Judge mentions two points : first, that at the time of the sale, as there were no bidders, the decree holder got the upset price reduced from Rs. 11,000 to Rs. 2,500, on a affidavit by his karyasthan, which the learned Judge calls suspicious. Why the affidavit by the karyasthan should be suspicious, we do not know. The second point is that when the bidding was resumed the karyasthan bid for Rs. 70, more than the upset price of Rs. 2,500 and the learned Judge thought that he added Rs. 70 to the upset price, because his conscience was pricking him, This seems to us rather a pointless remark. The learned Judge mentions another circumstance, that his predecessor was concluding sales in open Court, while that was not his own practice and as this was the first sale conducted in that Court, after he took charge : he thinks some bidders may have been waiting until the sale was concluded in open Court, before making, their bids.
3. There is absolutely no evidence, to justify any such assumption, nor even,, if there was any, would that circumstance amount to an irregularity or fraud in the conduct of the sale.
4. The learned Judge's conclusion that the price was unconscionably low is based, so far as appears from his order, on nothing more than a valuation by an Amin some five years earlier in March, 1917, which valuation was attested by the auction purchaser. He considers that this attestation meant that the auction-purchaser gave his 'sanction' to the estimate. It seem to us an inference wholly unjustified. The attestation was presumably in token of the Amin having come and made his estimate. The whole foundation of the suspicion, which the Subordinate Judge entertains regarding the affidavit by the auction-purchaser therefore falls to the ground. The order seems to us wholly indefensible, on the ground urged by the lower Court.
5. We have been asked to uphold it, on grounds other than those stated in the learned Subordinate Judge's order. It is urged that the decree-holder got the upset price reduced, by deceiving the Court, viz., by suppressing the material fact that the upset price was previously as high as Rs. 11,000 : but this argument fails, since the Court itself, had it been deceived, would certainly have stated so and made that a ground for action. Nowhere does it hint that it had been deceived. The decree-holder's petition to reduce the upset price mentioned the fact of there being an upset price and we cannot believe that the Court did not call for and consider that figure before passing its order. It was obviously not deceived and therefore could not say that it was deceived.
6. It is next urged that the sale was held in secret and that all sales formerly used to be in open Court. We have already set out, what the learned Subordinate Judge has said on this matter and it does not go anything like so far as to say that all the previous sales were being conducted in open Court, although the practice was to conclude the sale in open Court. Hence there was no room for the bidders to be ignorant of where the sale was being held. The statement of some of the petitioners in the lower Court, who are other decree-holders, that they were in open Court waiting for the sale and did not know that it was going on cannot be believed.
7. There is not a scrap of evidence to support this statement and it seems to us wholly disingenuous. Id is surely significant that these persons were present at the time of the sale and yet made no bid, even when the upset price was reduced to Rs. 2,500.
8. It is further alleged that the prior Judge had previously refused to reduce the upset price to Rs. 8,000. There is again no evidence for this nor any evidence, that it was not brought to the knowledge of the Judge. If the decree-holders were in open Court as they say, there is no reason why they should not have brought this to the knowledge of the Judge. There is no proof of the suppression of any material fact, which deceived the Judge into passing his order.
9. It is next alleged that the purchase was benami for the decree-holder, he not having got the permission of the Court. Again, there is nothing whatever to support this statement. It is a point taken in the judgment-debtor's petition, and. if there was anything in it, surely the lower Court would have mentioned it.
10. It is finally urged that the price fetched is far too low. This by itself is no ground for setting aside the sale, unless there has been an irregularity or fraud by reason of which the price fetched was low. Such an irregularity must first be proved, and the authorities quoted by the respondent, Sadatmand Khan v. Phul Kyar (1898) 20 All. 412, Sheorutton Singh v. Net Lall Sahu (1903) 30 Cal. 1 and Nibaran Chandra Chowdhry v. Chiranjib Prasad Bose (1905) 32 Cal. 542 are no authorities for the contrary. We have already said that we find no irregularity or fraud.
11. It was surely easy for the petitioners to have adduced evidence that the price was low, if what they say is true. The judgment debtors in fact asserted in their petition that several prominent persons and mirasidars were prepared to bid at the sale, for more than Rs. 11,000 and that 'they are even now prepared to do so'. But not a single one of these persons has come forward to substantiate the statement. The onus of proof clearly lay on the petitioners, who were seeking to set aside the sale.
12. It is urged here that the learned Subordinate Judge did not take any evidence. It is not urged, however, that he shut out the evidence, which the petitioners had ready. We are therefore not prepared to allow evidence to be taken now at this late stage.
13. We must reverse the order of the Subordinate Judge and confirm the sale. The appellant will get his costs from the respondents in each petition hare and below.