Francis W. Maelean, C.J. and Mitra, JJ.
1. This is an appeal under Section 588, Clause (16) of the Code of Civil Procedure from an order of the Subordinate Judge of Gya, setting aside a sale held on the 25th November 1902 in pursuance of an order made on the 11th June 1901 under Section 89 of the Transfer of Property Act. The appellants, the mortgagees, were themselves the auction-purchasers.
2. The judgment debtors, the mortgagors, based their application. for setting aside the sale on various grounds of fraud and material irregularity, but the only ground given effect to by the Lower Court is that the order made by the Court on the 22nd September 1902, adjourning the sale to the 24th November 1902, at the request of the judgment-debtors did not specify the hour of sale as prescribed by Section 291 of the Code, and that, therefore, there was material irregularity vitiating the sale.
3. The Subordinate Judge has found, and we see no reason to dissent from his finding, that the market value of the property sold is about Rs. 35,000. At the sale the highest bid was offered by the appellants, and that was only Rs. 18,500. The price fetched at the sale was, therefore, inadequate.
4. Section 291 of the Code expressly provides that, when the Court adjourns a sale, it should be adjourned to a specified day and hour. In Surnomoyee Debi v. Dakhinaranjan, Sanyal (1896) I.L.R. 24 Calc. 291, the omission to specify the hour of sale was held to be a material irregularity. The same view has been taken in Bhikari Misra v. Rani Surjamoni Pat Maha Dai (1901) 6 C.W.N. 48 and Venkata Subbaraya v. Zamindar of Karvetinagar (1896) I.L.R. 20 Mad. 159. It is the duty of the Court to specify the date and hour of sale, notwithstanding that the adjournment is due to the application of the judgment-debtor. We agree in the view of the Subordinate Judge as to the irregularity in the order of the 22nd September, 1902.
5. But these findings alone will not warrant the Court in setting aside the sale under Section 311, Civil Procedure Code. The applicant must satisfy the Court that he has sustained substantial injury by reason of the irregularity. The inadequacy of price realised at the sale must be shown to be the result of the irregularity. The Subordinate Judge has come to the conclusion relying on Bhikari Misra v. Rani Surjamoni Pat Maha Dai (1901) 6 C.W.N. 48, that the inadequacy of price was the result of the irregularity in the order adjourning the sale to the 24th November.
6. The arguments before us have centred on the last point. The question is one of fact.
7. In Olpherts v. Mahabir Pershad Singh (1882) L.R. 10. I.A. 25, Aruna Chellam Chetti v. Aruna Chellam Chetti (1888) L.R 15 I.A. 171 and Tassaduk Rasul Khan v. Ahmad Husain (1893) the Judicial Committee would appear to have held that there should be direct evidence connecting an alleged material irregularity in the publication or conduct of a sale with the inadequacy of price at such a sale, as cause and effect, in order to enable the Court to set aside the sale. To the same effect is the decision of the High Court at Allahabad in Jagannath v. Makund Prasad (1895) I.L.R. 18 All. 37. Admittedly there is no direct evidence in this case connecting the inadequacy of price with the non-specification of the hour of sale in the order of the 22nd September. The witnesses Barhamdeo Narayan Singh and Cheddi Singh, who say they were willing to bid for the property at the sale, do not say or suggest that they were deterred or misled from attending at the sale, on account of the non-specification of the hour. They say they knew nothing about the sale: but the sale had been duly proclaimed.
8. In Gur Buksh Lall v. Jawahir Singh (1893) I.L.R. 20 Calc. 599, Surnamoyee Debi v. Dakhina Ranjan Sanyal (1896) I.L.R. 24 Calc. 291,, Jamini Mohan v. Chandr Kumar (1901) 6 C.W.N. 44, Bhikan Misra v. Surjamani pat Maha Dai (1901) 6 C.W.N. 48, Sheoratan Singh v. Net Lal Sahu (1902) 6 C.W.N. 688 and Venkata Subbaraya Chetti v. Zamindar of Karvetinagar (1896) 6 I.L.R. 20 Mad. 159, however, the rigidity of the rule as to the necessity of direct evidence was relaxed, and we have been asked to infer that the cause of loss to the judgment-debtors was the non-specification of the hour of sale, though there is no direct evidence on the point. Assuming that these cases have correctly laid down the law and have rightly interpreted the decisions of the Judicial Committee referred to above, it is clear that there must be evidence of circumstances, which will warrant the necessary or at least reasonable inference that the inadequacy of price at the sale was the result of the irregularity complained of.
9. There is in our opinion no evidence from which it can be legitimately inferred that the loss was the result of the irregularity in this case. It is not even suggested in the evidence that any one was likely to be prevented or was in fact prevented from coming to bid on account of the non-specification of the hour. The witnesses, to whom we have referred and they are the only witnesses say nothing to the effect that it was due to the fact that the hour was not mentioned, that they did not attend the pale. This part of the case of the judgment-debtors was not the real case upon which their application to set aside the sale was based. The real case of the respondents was one of grave fraud against the appellants, a case which absolutely failed in the Court below, and which has not been even argued before us. On the other hand, the circumstances of the case lead to the conclusion that the non-specification of the hour was regarded as immaterial. The notice of sale as originally published gave the 19th May as the date and 12 A.M. as the hour. The sale was on that day postponed for one week at the request of the judgment-debtors. The order of that date fixed no hour of sale on the 26th May and no complaint was made. On the latter day the judgment-debtors paid to the decree-holders Rs. 1,000, and obtained a further postponement to the 21st July 1902. On the 21st July the judgment-debtors again obtained an adjournment to the 22nd September 1902. Again on that date the judgment-debtors applied for and obtained postponement of the sale to the 24th November 1902. On all these occasions they waived a fresh sale proclamation. They never asked the Court to fix an hour; the 21st July, 22nd September, and the 24th November were days of sale in the District of Gya, fixed according to Rule No. 100 made by the High Court (p. 32), and 12 A.M. is the usual hour for such sale to commence.
10. The judgment-debtors in their application to set aside the sale did not complain of any irregularity in the non-specification of the hour of the sale fixed on the 21st July, 22nd September or the 24th November, the ordinary sale days in the District of Gya. The sales are held by the Nazir; he begins usually at 12 A.M. and he goes on successively with the execution cases in the order they stand in the list, unless otherwise ordered by the Court. The judgment-debtors complained in paragraph 15 of their petition, of such non-specification only in the order of the 19th May adjourning the sale to the 26th May, as it was an unusual day of sale. But the sale did not take place on the 26th May.
11. We are, therefore, of opinion that there is no reasonable ground for holding that the irregularity in the order of the 22nd September 1902 resulted in substantial injury to the respondents.
12. No attempt has been made to support the judgment of the Lower Court on any other ground.
13. The order of the Subordinate Judge must be set aside and the appeal decreed with costs.