JUDGMENT Sulaiman, C.J.
1. This is a judgment-debtor's appeal from an order refusing to set aside an auction-sale. The judgment-debtor alleged material irregularities and fraud in publishing and conducting the sale and substantial injury in consequence. It appears that a simple money decree dated 16th. July 1929, had been in execution for some time. Landed properties belonging to the judgment-debtor were attached and execution was sought against them. It is not necessary to go back earlier than August 1930. The 20th August was fixed for the sale of the properties. The properties being revenue paying lands, the sale had to be conducted y the Collector. The order passed by the Subordinate Judge fixing the date, as noted in the order sheet, did not specify the hour at which the sale would take place, but the sale-proclamation which was issued mentioned the date as well as one o'clock as the hour at which the sale was to take place. It may also be noted that the incumbrances were not specified in the sale-proclamation but were specified in the order (rubkar) of the Court accompanying it when it was sent to the sale officer.
2. On 16th August, shortly before the date fixed, the judgment-debtor applied to the Court for the postponement of the sale. This application came up for disposal on the 20th and be made a statement that the sale should be postponed and 24th October 1930 be fixed for the sale, and that it should take place on that date without the issue of a fresh proclamation of sale. On this statement the Court postponed the sale and fixed 24th October for the next sale. As the judgment-debtor had agreed that there should be no fresh proclamation of sale issued, none was issued. On 24th October 1930, the Collector had about 104 items of properties for sale. These were grouped together under two different headings "Ancestral" and Non-Ancestral." In order to clear up this point the counsel for the parties agreed that the list of sale which was before the sale-officer on that day should be sent for. That register has come and we have looked into it with the consent of the counsel for both the parties. Items 1 to 74 were ancestral properties and items 75 to 104 were non-ancestral properties. Rai Bahadur Babu Jagannath Prasad has stated that the sale officer announced at the beginning of the sale that he would sell the non-ancestral properties first and the ancestral properties the next day. The judgment-debtor's properties, which were at serial No. 78., were put to auction at about 1 o'clock. Village Phulat was sold for Rs. 5,500 and village Muhammadpur for Rupees 1,543.
3. The judgment-debtor did not deposit the amount of the decree which was about Rs. 7,000 within 30 days and did not apply to have the sale set aside under Order 21, Rule 69, but preferred to have it set aside on the ground of irregularity and fraud under Rule 90. Various objections were urged in the Court below, but, as the order of the learned Subordinate Judge shows, he following points were pressed before him. AIR 1931 All 159 The decree-holder won over some official of the sale-officer's office and got the property sold first. (2). The sale-proclamation did not mention the incumbrances over the property. (3) The Court when postponing the sale did not specify the exact hour at which the sale should be held. (4) That fraud was practised inasmuch as intending purchasers were induced to go away by a misrepresentation that the sale would not take place that day or at earliest would be held late in the evening. (5) That the estimates of the values of the properties mentioned in the sale proclamation were grossly low which misled the intending purchasers. (6) That the actual value of the property was over Rs. 1,00,000.
4. On the first point the learned Sub- ordinate Judge has held that there is no rule which requires that sales of properties should take place in the exact order in which they are entered in the list by the sale-officer, and that accordingly there was no breach of any rule which amounted to a material irregularity. He relied on the case of: Inamullah Khan v. Shambhu Dayal AIR 1931 All 159, At p. 63 (of 1931 A.L.J.) in that case it was observed:
According to the sale-officer's report his practice always has been to sell first the non-ancestral properties before proceeding to sell the ancestral properties. In the absence of any rule requiring him to follow the order strictly, it cannot be said that there has been any material irregularity within the meaning of Rule 90.
5. We think that the view taken by the Court below is correct. The register or the list maintained by the sale-officer, of course, contains all the sales which have been ordered to take place by different Courts on that date, but there is no representation made that they would take place in the exact order in which they are entered in the register. Furthermore, as in the reported case so in the present case the. sale-officer took up the sale of the non-ancestral properties in the first instance. That is the explanation why the sale of item No. 78 came up at about 1 o'clock. We are unable to hold that this circumstance amounted to such a material irregularity as to vitiate the sale. There are rules regulating the order of sales of various lots when ordered to be sold in execution of one decree. There are also rules regulating the order of sales when the same property has been ordered to be sold by different Courts. But our attention has not been drawn to any rule which fixes the exact order in which different properties ordered to be sold by different Courts should be sold. We therefore see no serious objection to the sale-officer having taken up the non-ancestral properties for sale in the first instance. As a matter of fact when he had 104 items of properties to sell, he-could not have sold all those properties at the exact hour at which sales were announced in advance to commence. There was also hardly any evidence to show that the decree-holder had won over any official of the sale-officer's office. The finding of the Court below is against the judgment-debtor, and the learned Counsel for the judgment-debtor has also not pressed this point before us.
6. On the second point the contention of the judgment-debtor is that there was a non-compliance with the provisions of Order 21, Rule 66, inasmuch as the incumbrances on the properties were not specified in the sale-proclamation. As pointed out above, the original sale proclamation did not contain these specifications but the Rubkar which accompanied it did contain the specifications. An omission to mention the incumbrances in the sale-proclamation would not itself be injurious to the judgment-debtor, because it would be likely to persuade the auction-purchasers to offer a higher a price. It is however suggested that the fact that the incumbrances were noted in the accompanying Rubkar and not in the sale proclamation might cause a sudden surprise to the purchasers. But the rukbar had been sent along with the sale-proclamation. Whatever irregularity there was committed at the time of the issues of the previous sale-proclamation that irregularity was distinctly waived by the judgment-debtor when he agreed that the previous proclamation of sale should suffice and that there should be no further proclamation of sale. It seems to us that in view of his agreement, it is no longer open to him to say that the sale, which took place without any fresh proclamation, is vitiated because there was some irregularity in the sale proclamation issued on the previous occasion.
7. In the case of Girdhari Singh v. Harden Narain Singh (1876) 3 IA 230 (P.C.) the judgment-debtor had obtained a postponement: of the sale for one month, "the attachment and the notification of sale being maintained" (p. 240); the Court accordingly ordered the postponement of the sale "without the issue of a second notification of sale." Their Lordships of the Privy Council held that the judgment-debtor could not properly take objection to that notification by stating that there was an error in it, and that there was an admission on his part that the notification was correct, or that at any rate there was no such mistake or irregularity as would be likely to mislead intending purchasers which could have caused substantial loss to the judgment-debtor, the property being sold at an inadequate price. We therefore hold that there was no irregularity which can be considered to be material within the meaning of Order 21, Rule 90, which would vitiate the sale.
8. As regards the third point, there is no doubt that Order 21, Rule 69 prescribes that the Court may, at its discretion, adjourn any sale to a specified day or hour. It is therefore the duty of a Court to specify not only the day but also the hour to which a sale is adjourned. As noted above, no hour was specified in the order fixing 20th August 1930, for sale, nor had any hour been specified in the order fixing 24th October 1930 for the sale. In cases where properties other than landed properties are to be sold and sales take place on the spot, the specification of the exact hour is most important and an omission may be a serious irregularity, because it would not be possible for the purchasers to attend unless the time has been announced previously. But as regards landed properties General Rules (Civil) Vol. 2, p. 3, Appendix 1 (B) (1), Rule 2 lays down that "the sale shall commence at noon at all seasons in all districts." This may be an explanation why there was an omission of the exact hour in the two orders passed by the Subordinate Judge. As noted above, the hour was put down by the office in the proclamation of sale which was issued on the first occasion, but there being no fresh proclamation of sale on the second occasion, no hour was announced again.
9. The learned advocate for the judgment-debtor has relied on the cases of Babu Ram v. Inamullah AIR 1927 All 241, Rup Kishore v. Collector of Etah AIR 1929 All 948 and Abdul Rauf Khan v. Qamrunnissa AIR 1930 All 542 n support of the proposition that the omission to specify the hour is a material irregularity. In Babu Ram's case the properties to be sold were shops and building's, and the sale was not made by the Collector. Similarly in Rup Kishore's case AIR 1929 All 948, the sale was not of revenue paying properties and was held by the amin. In Abdul Rauf Khan's case AIR 1930 All 542 also the property sold was a house and the sale was not held by the Collector. The matter came up to the High Court in revision and the Bench declined to interfere holding inter alia that it was open to the Court below to find that there had been a material irregularity owing to the non-specification of the day and the hour. The learned advocate for the judgment-debtor has also relied on the case of Gulab Singh v. Raghubir Saran AIR 1932 All 369. No doubt that was a case of the sale of the zamindari property, but it appears that there the sale was. adjourned not by an order of the Court but by the sale-officer himself without specifying the hour at which the sale would take place the next day. Coupled with other matters the Bench held that there had been a material irregluarity. There was no question of a waiver on the part of the judgment-debtor in that case and it can therefore, be easily distinguished.
10. The main question before us is whether, although the omission to specify the hour may be an irregularity, it is a material irregularity when the judgment-debtor has agreed that there should be no proclamation of sale at all. Apart from the question that there is a definite rule in existence which lays down at what time the sale is to commence, and that therefore the intending purchasers presumably know the usual hour, the failure to mention the exact hour in the order ceases to be a material irregularity when it is agreed that no proclamation or notice of the sale would be issued. When there was to be no fresh announcement, it is very difficult to hold that the sale is vitiated because in the order directing adjournment the Court had omitted to mention the exact hour at which the sale should take place on the next day, the omission being presumably due to the fact that there was a rule in existence which fixed the time. If the judgment-debtor had felt any doubt as to the time at which the sale would take place, it was open to him to apply to the Court to specify the .hour so that he may himself take steps to notify not only the date but also the hour. But as remarked above, he agreed that there should be no proclamation of sale at all for the adjourned date. Indeed, it was on this express understanding that the sale was postponed. In these circumstances we are unable to hold that there has been a material irregularity in consequence of an omission in the order of the Court specifying the exact hour when the adjourned sale was to take place.
11. With regard to the question of fact that there was a fraud or misrepresentation, there are statements of a number of witnesses on behalf of both the parties. (After considering the oral evidence on this point, his Lordship concluded). We are wholly unable to believe the oral evidence and we cannot find that the judgment-debt or has discharged the burden of proving that there was a fraud committed by the decree-holder .or his agents which resulted in the property being sold at a low value. We agree with the Court below that this evidence must be disbelieved.
12. The learned Subordinate Judge has come to the conclusion that the property sold appears to be worth Rupees 40,000. The judgment-debtor had alleged that the property was . worth more than double the amount. In the course of the argument before us the finding of the Court below is accepted on behalf of the judgment-debtor and is no longer challenged, but the learned Counsel for the decree-holder-purchaser does not accept this finding as correct. He asserts that the learned Judge has given wrong areas and not what was stated by patwaris produced by the judgment-debtor himself, that he has overlooked that a large part of the lands is nonculturable, that a large area is sir land which after sale would vest in the judgment-debtor himself as his exproprietary rights, and that the interests on the mortgage deeds on the properties were rapidly increasing We do not think that it is necessary for us to go into the question of the actual value of the property, and we are prepared to assume in favour of the judgment-debtor that the properties sold were worth Rs. 40,000.
13. The under-valuation in the original proclamation of sale would then no doubt be very gross and would have been misleading to the auction-purchasers. Their Lordships of the Privy Council in the case of Saadatmand Khan v. Phul Kuar (1898) 20 All 412, considered that an under-valuation is something more than common irregularity for it is a misstatement of the value of the property which is so glaring in amount as could hardly have been made in good faith and was calculated to mislead possible bidders and to prevent them from offering adequate prices (p. 417).
14. No doubt that was a case which arose under Section 287, old Civil P.C, which did not actually provide for the issue of a notice to the judgment-debtor before the proclamation of sale was drawn up, as Order 21, Rule 66 provides. But the remark made by their Lordships is equally applicable. We would have been inclined to hold that the under-estimate was a material and serious irregularity which was the cause of the property being sold for a small amount, if no question of estoppel had arisen. It however appears that when the decree-holder first applied for execution, he wanted three villages to be attached, namely, the two present villages in disr pute, Phulat and Mohammadpur as well as a third village Ajitpur. The application was filed on 19th December 1929, and in it the decree-holder alleged that Phulat was worth Rs. 4,000, Mohammadpur was worth Rs. 1,000 and Ajitpur was worth Rs. 4,000. Notice was issued to the judgment-debtor to show cause before the settlement of price for the proclamation of sale. This notice was served on him personally. He appeared and filed an objection on 12th February 1930, in which it was alleged that village Ajitpur was worth Rupees 25,000 and had been grossly undervalued. It was further pleaded that Ajitpur was an ancestral village and should not be sold by the civil Court direct.
15. In this objection the judgment-debtor, for some unknown reason, did not object that the value of the villages Phulat and Mohammadpur had been under-estimated. The omission was all the more surprising, because, according to him, Phulat was really worth Rupees 1,00,000. It is therefore startling that although he took objection to the under-valuation at Rs. 4,000 of village Ajitpur said to be worth Rs. 25,000, he did not think it lit to raise objection to the under-valuation at the same figure of village Phulat which, according to him, was worth Rupees 1,00,000. The only explanation suggested on behalf of the judgment-debtor before us is that at that time he was concerned mainly with the xemption of village Ajitpur from sale by the civil Court direct on the ground that it was an ancestral property. The fact however remains that the judgment-debtor had notice that the decree-holder had filed an affidavit in support of the application alleging that the villages Phulat and Mohammadpur were worth. Rs. 4,000 and Rs. 1,000 only, and although he appeared in Court to file objections with regard to the third property, he took no steps to object to these under-valuations. Apart from any general rule of estoppel as was relied upon in the case of Mohan Lal v. Kall Charan AIR 1927 All 513, there is the fact that this High Court has made the following addition to the proviso to Order 21, Rule 90:
No such application shall be entertained upon any ground which could have been taken by the applicant at or before the date on which the sale proclamation was drawn up.
16. This amendment was made long before 1929. It seems quite clear to us that in view of this express addition, it is no longer open to the judgment-debtor to urge that the under-valuations amounted to a material irregularity within the meaning of that rule. Notice was expressly issued to the judgment-debtor under Order 21, Rule 66 to appear and show cause. He had full opportunity of pointing out this mistake to the Court at the time. He refrained from doing it or omitted to do so. This ground should have been raised by him before the sale-proclamation was actually drawn up. Not having raised any such ground he must be deem-i ed to have waived it. He must therefore be estopped from now raising the same ground and urging that the under-valuations were a material irregularity in the publication of the sale. The whole object of the amendment is that judgment-debtors should not sit idle and refrain from pointing out mistakes in the sale-proclamation when they are given an opportunity to do so, and then after the sale has taken place, raise an objection in order to get that sale set aside. We think that in view of the express provision in this amendment, it is no longer open to the judgment-debtors to make the undervaluations a ground of material irregularity. This was a view expressed by a Bench of this Court in the case of Abdul Raoof Khan v. Qamrunnissa AIR 1930 All 542. The judgment-debtor is not estopped from showing that the actual value of the property was much more than what was announced in the original proclamation of sale in order to show that he had suffered substantial loss, but it would be incumbent upon him to show that this substantial loss was the consequence of some other material irregularity. He cannot be allowed to treat the under-valuation itself as a material irregularity when he failed to object at the time when he appeared on the former occasion. We are therefore compelled to overrule this objection.
17. A further point against the judgment-debtor is that this alleged irregularity was committed when the previous sale-proclamation was issued. He chose to waive his right for the issue of a fresh proclamation and agreed that no such fresh proclamation should be issued. Having done so, he must be deemed to have waived his objection to the irregularity in the previous sale-proclamation. When no fresh proclamation was issued, he cannot be allowed to get the sale vitiated on the ground that, although no sale-proclamation was issued at this time, there had been an irregularity in the preparation of the previous sale-proclamation owing to the under-valuations. There was oral evidence led on behalf of the judgment-debtors that there was no beating of drum and no due affixation of notices. But there being no proclamation of sale on the second occassion, there could, of course, be no beating of drums and no affixation of notices. So far as the evidence refers to such omissions on the occasion of the first proclamation of sale, the evidence has not been believed by the Court below, and does not appear to us relevant. All such objections must be taken to have been waived when the judgment-debtor agreed that the sale should take place without any fresh proclamation.
18. Holding that the judgment-debtor is now estopped from urging that the under-valuations in the previous sale-proclamation were a material irregularity, we are unable to hold that there has been any other material irregularity which has caused the property to be sold at an inadequate value. The mere fact that the price fetched was grossly low is not in itself sufficient to vitiate the sale. If the judgment-debtor has suffered, it is due to his own negligence and omission in not raising this point when he received notice under Order 21, Rule 66 and to his obtaining an adjournment by agreeing to the sale taking place on 24th October without the issue f a fresh proclamation. This appeal is accordingly dismissed with costs.