1. This is an appeal against an order of the Subordinate Judge of Bhagalpore refusing to set aside a sale. The Subordinate Judge proceeded mainly upon a petition presented by the judgment-debtors on the 27th September 1879, asking for a postponement of the sale fixed for the 6th October following, on the ground that they had not been able to close their negotiations to raise money to pay off the debt. The Subordinate Judge considered that it was clear from that petition that the judgment-debtors had, before the sale, acknowledged and admitted the publication of the attachment and sale-proclamation.
2. We find nothing in that petition in any decree amounting to such an admission, or to a waiver on the part of the judgment-debtors of any objection to any irregularity. In fact, had the application been granted, it would have been necessary to issue a fresh proclamation, unless the judgment-debtors had consented by some subsequent act of theirs to waive such formality.
3. The other objection taken is, that the Subordinate Judge did not examine the witnesses for the judgment-debtors, who were present at the hearing of the case. It appears from the record at the end of the examination of the first witness, that there are ample grounds for this contention. The Subordinate Judge having erroneously proceeded upon the petition, which had been made by the judgment-debtors, and having in consequence refused to examine the witnesses produced by the judgment-debtors to prove material irregularity in publishing or conducting the sale, which resulted in substantial injury to them, it becomes necessary to return the case to the Subordinate Judge, in order that he may examine all the witnesses tendered by the parties, and then return the case to this Court with a distinct finding as to whether there has been a material irregularity in publishing or conducting the sale, which has resulted in substantial injury to the judgment-debtors.
4. I am of the same opinion. I think that this case is distinguishable from the case of Girdhari Singh v. Hurdeo Narain Singh (L. R., 31. A., 230), decided by their Lordships of the Privy Council. In that case, the judgment-debtor applied for a postponement of the sale, and his petition contained the following passage: 'Under such circumstances, it is prayed that a postponement of one month be granted, the attachment and the notification of sale being maintained.' Now the words italicized were held by the Privy Council to amount to an admission, that there was no such mistake or irregularity as would be likely to mislead. There are no such words in the present case, and further it is to be observed, that the petition made by the judgment-debtors (appellants) was disallowed by the Court.