1. This is an appeal from an order made by the Subordinate Judge of the 24-Pergannahs on the 30th of June 1908, setting aside a sale in execution held as far back as September 1902.
2. The mortgage, on which the suit and the execution proceedings were founded, bears date the 9th of December 1896 and thereby Surendra Nath Chose and Manindra Nath Ghose mortgaged the property in dispute to Lalbehary Mitter to secure Rs. 25,000.
3. On the 25th of September 1899, the mortgagee instituted a suit against the mortgagors and certain prior and puisne mortgagees for the realization of Lis mortgage, and on the 1st of August 1901, a decree was passed on appeal by the High Court directing, in the events that have happened, a sale of the property subject to all prior incumbrances unless the incumbrancers consented to the sale. On the 18th of January 1902, an order absolute for sale was made.
4. On the 2nd February 1902, Manindra Nath. Ghose died and was succeeded by his minor sons and heirs on whose application the order now under appeal was made.
5. Their mother having expressed her unwillingness to be so appointed, the nazir of the Court was on the 26th of April 1902, in accordance with the usual practice, appointed to be guardian for the suit for the minors.
6. The day fixed for the sale of the property was the 14th of July but on the 10th of July the judgment-debtors, the minors being represented by their guardian, applied at the Collector's suggestion for a postponement of the sale for 3 months with a view to enquiries being made whether the properties should betaken under the charge of the Court of Wards. Notwithstanding the decree-holder's objection, two months' time was granted, but it was made a condition of this concession that the judgment-debtors should pay Rs. 200 as damages to the decree-holder and 'waive their right to a fresh sale proclamation and to making other objection regarding the irregularity in publishing the sale proclamation.'
7. On the 14th July 1902, a petition was presented by Surendra Nath Ghose and the nazir on behalf of the minors stating that. they had brought the Rs. 200 into Court, and waived all right to the issue of a fresh sale proclamation and all objections on the ground of irregularities in connection with the execution of the decree, and they prayed that the decree-holder might be directed to receive the Rs. 200 and that the sale might be postponed and Monday the 15th of September fixed for the sale.
8. On the same day the Court made an order as prayed, and postponed the sale till 1 P.M. of the 15th September 1902 'without any fresh sale proclamation.' The Court of Wards did not take the property under its charge and in the end the sale was held on the 15th of September 1902 as directed, without any fresh sale proclamation. At the sale, the present appellant purchased the property for Rs. 39,878 subject to prior encumbrances, which are estimated at over, Rs. 85,000. On the 13th November 1902, the sale was confirmed and possession was delivered on the 19th of December 1902.
9. On the 29th of August 1903, the minor's mother applied under the Guardians and Wards Act to be appointed their guardian, and on the following 8th of December a certificate was granted to her. On the 12th of June 1907, she made the present application to set aside the sale, and this she did, though the nazir had not been removed. The petition embodying the application charges fraud, illegality and irregularity on the part of the decree-holder, and neglect of duty on the part of the nazir, but the Subordinate Judge has not upheld these charges nor have they been advanced before us. The learned Judge, however, held that the nazir 'did not act properly and for the benefit of the minors in filing the petition on the 14th July making the waiver under consideration and...that they are not bound thereby.' In coming to this conclusion he was influenced by his view that 'the postponement of the sale from the 14th July to the 15th September and no proclamation having been made that the sale would take place on the latter date caused substantial loss to the judgment-debtors.'
10. He accordingly set aside the sale absolutely and unconditionally, regardless of the fact that Surendra Nath Ghose was not party, and without any direction as to the purchase-money paid by the purchaser or the amount expended by him in the discharge of prior encumbrances and for other matters. By the rules of this Court, Section 291 of the Code of Civil Procedure, 1882, applied to this sale, and that Section empowered the Court in its discretion to adjourn any sale to a specified day and hour, but it was prescribed that whenever a sale was adjourned under the Section for a longer period than 7 days, a fresh proclamation should be made unless the judgment-debtor consented to waive it. Now on the facts have narrated, there can be no question that Surendra Nath Ghose gave such consent, and that the nazir, as the guardian for the suit for the minors, purported to give his consent. The only question is whether in so doing the nazir acted beyond his powers. That he acted in good faith is beyond dispute. The minor's own mother on the 22nd April 1902 presented a petition to the Court whereby she prayed that a proper order might be passed for staying the execution proceedings till the final disposal of the application made on behalf of the to the Board of Revenue. Surendra Nath, the minors' adult uncle, joined with the nazir in making the application for postponement and submitted to the condition imposed by the Court: the petition itself shows that the application was made at the Collector's suggestion, and the condition was imposed by the Court before whom all the material facts were placed. But then it is urged on behalf of the minors that even though the nazir acted in good faith, he had not the power to waive a fresh proclamation, first, because the whole order was beyond the Court's jurisdiction, and secondly, because the nazir, as guardian, had not the power to give up a right vested in the minors.
11. The argument that the order was without jurisdiction rests on certain remarks contained in the judgment of the Courts in Shy am Kishen v. Sundar Koer 31 C. 337, which, it is contended, show that in the circumstances it was not competent to the Court to adjourn the sale inasmuch as it was in execution of a mortgage decree. The contention rests on a supposed conflict between Section 89 of the Transfer of Property Act and Section 291 of the Code of Civil Procedure, 1882. But I fail to see the conflict; the one Section is concerned with the Court's order absolute for sale, the other with the adjournment of the sale directed and so they relate to different matters. Reading the judgment in Shy am Kishan's case 31 C. 337 as a whole, I do not think it was intended to lay down that the order for adjournment was without jurisdiction, but only that it was erroneous. Cf. Bibijan Bibi v. Sachi Sewa 31 C. 683 : 8 C.W.N. 684. But even assuming for the sake of argument that the order with which we are concerned was erroneous, it obviously is not ordinarily open to a party, who has obtained and enjoyed the benefit of an erroneous order, afterwards to turn round and ask that the order should be treated as a nullity and disregarded. But does it make any difference that minors were concerned? The guardian was clearly entitled to make the application on behalf of the minors (Section 441, Civil Procedure Code, 1882) and, in my opinion, he could consent to waive, as he did, the fresh proclamation, that being a condition on which the Court insisted as a. term of making the concession sought. It is argued that in so doing he gave up a right belonging to the minors and that this he could not do. But the right was one created by Section 291 of the Civil Procedure Code and was a mere matter of procedure in execution prescribed by that section. I, therefore, fail to see what there was to prevent the guardian, acting, as he did, in good faith, from giving the consent contemplated by the section so as to bind the minors thereby. Therefore, I hold that the minors cannot now impugn the sale on the ground that a fresh proclamation was not made.
12. In this view of the case, it is not strictly necessary to consider how far the Subordinate Judge's conclusion as to the loss occasioned to the judgment-debtors by the waiver of the fresh proclamation can be sustained, but as the matter has been discussed before us and the evidence has been brought to our notice, I think it right to say that I am unable to agree with the Subordinate Judge. In effect he bases his conclusion on the supposition that the net income of the property was not less than Rs. 12,000 and that 17 3/4 years' purchase was a fair estimate of its capital value.
13. In taking Rs. 12,000 as the net income, the learned Judge was influenced by the judgment-debtors' treaty with the appellant for a putni at that rate, but nothing came of it. Mr. Chaudhry has further attempted to support this figure by a statement in Romash Chandra Chuckerbutty's affidavit filed on the 11th July 1902, in which he says: 'I made an enquiry in the locality. and at the cutchery of the judgment-debtors. I came to know and believe that the annual net income thereof, would be Its. 12,000 (Twelve thousand) and that the value thereof in an unencumbered state would by no means be more than Rs. 1,10,000.'
14. This, it is said, shows that the Judge was justified in taking the net profits as Its. 12,000 but the affidavit itself indicates the information on which this estimate was based, and in this oral evidence before the Subordinate Judge, Rornesh Chunder Chukerbutty explains the statement in his affidavit in a manner which deprives it of the force that the respondents would ascribe to it.
15. After careful consideration of the oral evidence and of the tables of figures that have been placed before the Court, I am not convinced that the net income of the property was at the time of the sale Rs. 12,000. Mr. Chaudhry endeavoured to support the view that the income of the properties could not be less than this sum by a reference to certain settlement papers. No reliance, however, was placed on these in the Court of first instance and rightly so, for the inference sought to be drawn from them rests on the fallacy of identifying the annual value of a piece of land with the sum of the rents payable in respect of the several tenures and under-tenures relating to it. The acceptance of 17f years' purchase as the proper multiplier for the purpose of arriving at the capital value of the land rests on the evidence of Raj Kumar Singha, a servant of Maharaj Kumar Kristo Das Lala, who speaks to a treaty for the purchase by his master of the property at 17 3/4 years' purchase.
16. But this treaty proved infructuous and it would be a mistake to place too much reliance on it. It is true that some of the judgment-debtors' witnesses, speaking generally, would put the multiplier at 12, 15, 16, 20, or 25 years' purchase. But as against this, there is distinct evidence on the appellants' side of two specific sales in one of which the property was sold at 6 and in the other at 9 years' purchase, and it is contended on behalf of the appellant that this represents fair value.
17. The figure may appear small but regard must be paid to all the circumstances. First it must be borne in mind that this was a forced sale and the difficulties that attend an auction-purchaser have become proverbial.
18. This case has proved no exception for there is evidence that this litigation is financed by the tenants; whether this is purely for altruistic motives may perhaps be doubted. Then the character borne by the district, in which this property lies, does not encourage high prices; it is subject to inroads of the sea, and it was treated as matter of common notoriety before us by counsel on both sides that the tenants of Backerganj have not the reputation of being the most tractable. Nor can disregard the fact that though more than a year elapsed between the decree and the sale, no one could in the interval be discovered to save the judgment-debtors' position by finding the required money either as purchaser or mortgagee, and yet there is reason to suppose that efforts were made in this direction on behalf of the mortgagors.
19. I am, in these circumstances, unable to adopt the Subordinate Judge's view that the absence of the fresh proclamation occasioned a substantial loss to the judgment-debtors, for it is not shown that the Judge's estimate of the value of the property represents what it would be reasonable to expect as the result of a forced sale, nor has it been shown that the absence of the-fresh proclamation in any way affected the sale, which it is to be noted was adjourned on the 14th of July to a specified day and hour. Several other points were urged on behalf of the appellants but in the view I take they need not be noticed, and though cross-objections were filed on behalf of the judgment-debtors, their counsel in the exercise of his discretion stated that he could, not properly urge before us anything beyond those topics with which I have dealt, and it is on those alone that he has relied.
20. The result then is that the appeal must be allowed, the order of the Court below reversed, and the application to set aside the sale dismissed with costs throughout. We assess the hearing fee in this Court at fifteen gold mohurs.
21. This judgment will govern the other appeal (No. 449), in which the application is accordingly dismissed with costs throughout. We assess the hearing fee in this Court at ten gold mohurs.