JUDGMENT V.N. Verma, J.
1. This appeal is directed against an order dated 21-5-1976 passed by I Additional Civil Judge, Kanpur allowing the objection of the judgment-debtor under Order 21, Rule 90 C. P. C. and setting aside the auction sale with respect to House No. 36/47 Ram Mohan ka Hata and House No, 128/142 Dwarikadhish Road, Kanpur,
2. One Ram Dutt Kajriwal brought a suit (Suit No. 1055 of 1952) against Purshottam Das Poddar at Calcutta and obtained an ex parte decree against him for Rs. 56,975 on 20-3-1952. The decree-holder got his decree transferred to the Court of I Civil Judge, Kanpur for execution. There he gave an application and prayed for attachment of three houses, namely, 36/47, Ram Mohan Ka Hata, 28/142 and 28/136 Dwarikadhish Road, Kanpur. In this case we are not concerned with the last mentioned house. The first two houses were attached by the Court Amin on 26-3-53. The judgment-debtor Purshottam Das Poddar filed an objection against the attachment under Order 21, Rule 54 C.P.C. and at the same time requested the Court to stay the sale of the attached houses. The Court, however, did not stay the same, instead it passed an order that the confirmation of the sale would not be done till further orders,
3. On 16-9-1955 the two attached houses were auctioned by the approved auctioneers, namely, M/s. Sohan Lal & Sons. House No. 28/142, Dwarikadhish Road, Kanpur was purchased by Ram Krishan Kapoor for Rs. 13,250 while house No. 36/47, Ram Mohan Ka Hata was purchased by Jagmohan Lal, Kanodiya for Rs. 23,300. Thereafter, an objection was filed by the judgment-debtor on 16-10-1955 under Order 21, Rule 90 C. P. C. The hearing of this objection was adjourned on several dates. On 13-4-1957 the judgment-debtor filed an application before the Civil Judge mentioning therein that he hoped to get better purchasers for the two houses and they would be willing to pay Rs. 28,000 for house No. 36/47, Ram Moham Ka Hata and Rs. 16,000 for house No. 28/142, Dwarikadhish Road, Kanpur. He requested the Court to give him time till 28th May, 1957 to produce these purchasers. And in case he failed to produce such purchasers his objection under Order 21, Rule 90 C. P. C. may be dismissed and the sales made in favour of the auction-purchasers be confirmed. The Court gave the judgment-debtor time till 28-5-1957 to bring the purchasers as suggested by him and to get full purchase money deposited by them in Court by that date. In default his objection under Order 21, Rule 90 C.P.C. was to stand dismissed. On 27-5-1957 one Satya Narain made an application in the Court of Civil Judge accompanied by a tender for a sum of Rs. 16,000 stating therein that he was willing to purchase house No. 28/142, Dwarikadhish Road for Rs. 16,000. The Civil Judge ordered that he must deposit Rs. 16,000 by 28-5-1957 and listed the application for orders on 29-5-1957. On 28-5-1957 one Um Shanker Shukla also filed an application accompanied by a tender for a sum of Rs. 28,000 stating therein that he was willing to purchase house No. 36/47, Ram Mohan Ka Hata for Rs. 28,000. On that application also the Civil Judge ordered that money must be deposited by 28-5-1957 and his application be listed for orders on 29-5-1957. The tender filed by Satya Narain was signed by the Court on 27-5-1957 and the tender filed by Uma Shanker Shukla was signed on 28-5-1957. These tenders were returned to Satya Narain and Uma Shanker Shukla by the office of the Court on 28-5-1957. Thereafter, on the same day these persons presented those tenders to the Treasury Officer, On 29-5-1957 the tender submitted by Satya Narain was returned with an endorsement that an entry of the amount of tender in words was wanting. The tender submitted by Uma Shanker Shukla was returned with an endorsement that it was valid for payment up to 30-5-1957, As both Satya Narain and Uma Shanker Shukla failed to deposit money by 28-5-1957 the Court confirmed the sales in favour of the auction-purchasers on 29-5-1957. Aggrieved with the order passed by the Court, the judgment-debtor came up in appeal (F. A. F. Order No. 175 of 1957) to this Court. This Court held that as both Satya Narain and Uma Shanker Shukla had filed tenders in Court before 28th May, 1957 they will be deemed to have deposited their money on that date. The Court, therefore, set aside the order dated 29-5-1957 passed by the Civil Judge dismissing the objection filed by the judgment-debtor under Order 21, Rule 90 C. P. C. and remanded the case for deciding the objection in accordance with law.
4. After the order of remand passed by this Court, the objection under Order 21, Rule 90 C. P. C. came to be heard by I Additional Civil Judge, Kanpur. The learned Additional Civil Judge after hearing the parties held that there had been material irregularity in publishing and conducting the two disputed auction sales due to which the judgment-debtor sustained substantial injury. He, therefore, set aside those sales by the impugned order dated 21-5-1976. Aggrieved, the auction-purchasers have come up in appeal to this Court.
5. We have heard the learned counsel for the parties at great length and after doing so we are firmly of the view that this appeal must be allowed. We find that the I Additional Civil Judge, Kanpur has not clearly understood the scope and content of the provisions of Order 21, Rule 90 C. P. C. with the result that he fell in error and passed a wholly wrong order setting aside the auction sales in respect of House No. 36/ 47, Ram Mohan Ka Hata and House No. 28/142 Dwarikadhish Road, Kanpur. Before a sale can be set aside under 21, Rule 90 C. P. C. it is incumbent on the part of the judgment-debtor to prove that there was material irregularity or fraud in publishing or conducting the sale and that he had sustained substantial injury by reason of such irregularity or fraud. Mere irregularity or fraud in publishing or conducting the sale will not, entitle the Court to set it aside unless upon the facts proved the Court is satisfied that the judgment-debtor has sustained substantial injury by reason of such irregularity or fraud. Therefore, what we have to see in this case is whether or not there has been material irregularity or fraud in publishing or conducting the two sales in this case and also whether or not the judgment-debtor-respondent has sustained substantial injury by reason of such irregularity or fraud. In order to show that there has been material irregularity in this case the learned counsel for the judgment-debtor-respondent drew our attention to (i) that the sale proclamation formally issued by the Court on 21-5-1955 was not properly published; (ii) that in the sale proclamation the court did not specify the actual time when the two auction sales were to take place; (iii) that no sufficient publicity was done in regard to these sales and (iv) that the auctioneers conducted the sale in great hurry with the result that a sufficient number of prospective bidders could not make their bids. In our opinion all these plaints have no substance in them either in law or on facts.
6. The first question that falls for answer in this case is whether or not the sale proclamation issued by the Court had been published as required by law. The learned counsel for the judgment-debtor made an attempt to show that it had not been published but he could not satisfy us on this point. On the contrary, there is a document on record (Paper No. 87-D) which clearly goes to show that the proclamation had been published in accordance with law. Paper No. 87-D is a copy of the proclamation and on its back the report of the process-server who had gone to publish it is recorded. The report of the process-server clearly shows that he had gone to the two houses in question -- one situate on Dwarikadhish Road and the other situate in Ram Mohan Ka Hata--and had affixed sale proclamation on both these houses as also on a conspicuous place on the roads on which these two houses were situate. The report of the process-server further shows that he had affixed a copy of the sale proclamation on the notice board of the court also. The process-server had verified on oath the correctness of his report before the official concerned of the Court. We see no reason to doubt the correctness of the report submitted by the process-server. Even the learned counsel for the judgment-debtor made no attempt to assail the correctness of its contents. We have, therefore, no hesitation in relying upon this report. From, this report, we are satisfied beyond all doubt that the sale proclamation had been duly published in accordance with the provisions contained in Sub-rule (2) of Rule 54 of Order 21 C. P. C.
7. The next ground advanced for assailing the two auction sales is that the Court did not specify the actual time when the two houses were to be sold. In the sale proclamation it was clearly mentioned that the two houses would be sold between 12 noon and 4 P. M. The sale was first to take place on 8-7-1955 and then it was adjourned to 28-7-1955. Later on it was again adjourned to 16-9-1955. On each occassion the sale was adjourned at the instance of the judgment-debtor and every time he waived his right to a fresh proclamation. As the judgment-debtor had waived his right to a fresh proclamation it means that on 16-9-1955 also the sale of the two houses was to be done at any time between 12 noon and 4 P. M. The auctioneers had publicised the time of sale as 12-30 in the day. It is true that the auction sales of both the houses could not have been done at one and the same time, i. e., 12-30 P. M. but no undue importance should be given to this thing. The sale of house No. 28/142 Dwarikadhish Road was done first. The auction sale in regard to this house commenced from 12-30 P. M. and lasted till 1-30 P. M. After selling this house the auctioneers proceeded to house No. 36/47, Ram Mohan Ka Hata which was hardly at a distance of about two furlongs from the first house and the auction there lasted from 2 P. M. to 3-30 P. M. Sri Jaishanker Mehrotra has been examined on behalf of the auctioneers and he stated that about 40-50 people had attended the auction sale and out of them eight persons made their bid for house No. 28/ 142 Dwarikadhish Road and 12 persons for house No. 36/47 Ram Mohan Ka Hata. This is clear from the bid-sheets also. We find that the court below has not placed reliance on the testimony of Sri Jaishanker Mehrotra on the ground that he is an interested witness and his conduct in conducting the auction sale had been far from straight. We cannot persuade ourselves to subscribe to this view of the court below. We fail to understand how Sri Jaishanker Mehrotra can be called an interested witness. We also fail to understand how he can be accused of having not done his job in a straightforward manner. In our opinion, Jaishanker Mehrotra is a good and dependable witness and it would not be proper to ignore his evidence for nothing. On the strength of his statement we are satisfied that quite a large number of persons had collected at the time of the two auction sales. All of them may not have made bids for the houses but quite, a good number of them certainly did make bids for them. If so many persons attended the two auction sales and so many persons made bids at the time of auction it cannot be said that the non-mentioning of the exact time of the two sales in the posters and handbills made any difference to the result of the sale. At best, the non-mentioning of the time in regard to the two sales was nothing but just an irregularity. The same view was taken by this Court in Chuttan Lal v. Md. Ikram Khan, 1933 All LJ 1273 : (AIR 1933 All 546). In this case also no time was fixed for the sale and the sale had taken place without a fresh proclamation as the right to fresh proclamation had been waived by the judgment-debtor, Sulaiman, C. J. speaking for the Court observed,--
"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."
8. In the instant case also the judgment-debtor had waived his right to a fresh proclamation. In other words 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 the case before us, however, the auctioneers had fixed 12-30 P. M. as the time for the sale. The auctioneers sold the house situate on Dwarikadhish Road first and then the house situate in Ram Mohan Ka Hata. The sale of the first house commenced from 12-30 P. M. and lasted till 1-30 P. M. and the sale of the second house commenced from 2 P. M. and lasted till 3.30 P. M. A large number of persons had attended both the sales and quite a good number of them had made bids also. Therefore, non-publicising of the exact time when each house would be put to sell did not cause any prejudice to the judgment-debtor. The non-publicising of the exact time of the two sales was just an irregularity which never went to the root of the matter.
9. Next it was tried to be shown that the auctioneers did not give sufficient publicity to the auction sale with the result that the two houses did not fetch adequate price. To our mind, this contention also is bereft of all substance. The court had appointed Sohan Lal & Sons as the auctioneers to conduct the auction sale in this case. Jaishanker Mehrotra was examined on behalf of the auctioneers and he has given full details of the way in which publicity of the auction sale had been done. He stated that publicity was done by beating of drums in different parts of the city, by distributing handbills, by posting posters in different parts of the city, by making Tongas go round the city with posters affixed on them and by advertising the sale in several newspapers, namely, Jag-ran, Vishwamitra, Veer Bharat, Pratap and Advance. It is true that the persons who distributed the handbills, the persons who do the drum beating, the persons who posted the posters and the owners of Tongas whose Tongas went round the city carrying posters have not been examined but that is a thing of not much consequence. Jaishanker Mehrotra had himself seen posters affixed in several parts of the town including Mall Road, Hatiay and Kamla Tower. He had also seen the handbills here and there. So far as newspapers are concerned he filed issues of three of them, namely, Veer Bharat, Jagran and Advance to show that sale of the two houses had been advertised in these papers also. Apart from this, he had sent letters to 36 persons under certificate of posting informing them about the sale of the two houses. This is clear from paper No. 138 Ga present on record. The fact that handbill, had been distributed and posters had been affixed in the city has been admitted by the judgment-debtor also. His only grievance is that handbills had not been distributed in sufficient numbers and the posters had not been affixed in abundance. It is in the interest of the judgment-debtor to underestimate things and, therefore, we are not prepared to attach much value to his evidence on this point. Therefore, after seeing the facts as they stand we are fully satisfied that enough publicity had been done by the auctioneers in this case.
10. Lastly, it was urged before us that the auctioneers had conducted the sale in great hurry with the result that a sufficient number of prospective bidders could not make their bids and the houses, therefore, could not fetch adequate price. This grievance also, to our mind, is without any foundation. We have already observed above that the sale of house No. 28/142 Dwarika Dhish Road lasted from 12-30 P. M. till 1-30 P. M. and that of house No. 36/47, Ram Mohan Ka Hata from 2 P. M. till 3-30 P. M. Seeing these timings it cannot be said that the auctioneers had hurriedly rushed through the matter. The judgment-debtor examined himself and some witnesses to show that because of uncertainty in regard to the time of sale many bidders could not attend the auction sale to make bids. The judgment-debtor himself never attended the sale or any of the two houses and, therefore, no value can be attached to his statement because it is based on hearsay evidence. Kali Shanker (D. W. 1) claimed himself to be an employee of Radha Kishan Singhaniya. He stated that he had been instructed by his employer to make a bid of Rs. 18,000 to Rs. 20,000 for house No. 28/142 Dwarikadhish Road and Rs. 35,000 to Rs. 40,000 for house No. 36/ 47, Ram Mohan Ka Hata and with the intention to make bids for these houses he first went to Ram Mohan Ka Hata at about 12-30 P. M. He waited there for about an hour for the auction to begin but no auction took place. He then went to the house of the auctioneers to find out whether the auction would take place on that day or not. He could not contact any responsible man there and, therefore, left for his house via Sirki Mahal. In Sirki Mahal he learnt that house No. 28/148 Dwarikadhish Road had already been void. We have gone through his statement very carefully and we may say here at once that he has not in the least impressed us to be a truthful witness. It appears that he is the own man of the judgment-debtor and that is why he agreed to give evidence on his behalf. If he had really been instructed by his employer to make a bid of Rs. 18,000 to Rs. 20,000 for one house and Rs. 35,000 to 40,000 for the other house he must have carried with him 25% of the bid money for being paid immediately on the fall of the hammer. Admittedly he never carried any such money with him. We are, therefore, not prepared to believe him when he says that he was one of the prospective bidders in this case.
11. Roop Narain (D. W. 3) is the tenant of house No. 28/142, Dwarikadhish Road. He runs his Arhat shop in this building. He stated that no auction sale of house No. 28/142 Dwarikadhish Road took place in his presence on any day in the month of September, 1955. On the face of it this statement is totally false. Even the judgment-debtor does not say that house No. 28/142 Dwarikadhish Road was not sold in auction on 16-9-1955. One may then ask as to why he has come forward to give false evidence in this case. The reason for this is not far to seek. On his own showing he is on terms of deep enmity with one of the decree holders, namely. Ram Krishan Kapoor. Ram Krishan Kapoor had purchased house No. 28/142 Dwarikadhish Road in the auction sale and he is out to evict this witness. This has led to several litigations between them. It lies in his interest to support the judgment-debtor and that is why he has come forward to depose for him.
12. Bajrang Lal Ojha (D. W. 4) was examined to state that when house No. 28/142 Dwarikadhish Road was being auctioned there was no beating of drum and he had accidently arrived there seeing some people standing near the auctioneers. He made a bid for Rs. 11,000 and then stopped making bids as he heard from people present there that there was some dispute in regard to the ownership of the house. His presence at the time of the auction sale cannot be doubted as the bidsheet shows that he was one of the bidders for house No. 28/142 Dwarikadhish Road. We are, however, not prepared to place much reliance on his evidence because he also appears to us to be a man of the judgment-debtor. According to his own showing the judgment debtor is a relation of his employer. The statement of Madan Lal (D, W, 5) also leads us nowhere. All that he has spoken about is that when house No. 36/ 47 Ram Mohan Ka Hata was being sold there was no beating of drum and that only six or seven persons were present,
13. Thus, from a perusal of what we have mentioned above it is clear that the judgment-debtor has failed to prove that the auctioneers had conducted the auction sale in great hurry due to which a sufficient number of prospective bidders could not make their bids. On the contrary what we find is that quite a sufficient number of persons had attended the two sales and eight persons made bids for one house and 12 persons made bids for the other house. We do not know on what basis the court below has mentioned that the bidders at both the sales were more or less common. The fact of the matter, however, is that only four bidders were common at the two sales. To expect more bidders at the time of auction sale would have been nothing but an exercise in futility because according to the iudgment-debtor himself it was a period of great slump (sea his application dated 31-5-1955). In a period of slump there is great economic depression and people generally shy away from purchasing property. Consequently, as the things stand we are satisfied that a sufficient number of bidders had made bids and therefore by every manner of reckoning the auction sale in this case had been done quite fairly and properly and not in a hurried manner as alleged by the judgment-debtor,
14. Lastly, we come to the question whether or not the two houses fetched adequate price in the auction sale. Admittedly, house No. 28/142 Dwarikadhish Road was sold for Rs. 13,250/- while house No. 36/47 Ram Mohan Ka Hata was sold for Rs. 23,300. In the sale proclamation the estimated value of both these houses was mentioned with the consent of the parties. The value of house No. 28/142 Dwarikadhish Road was shown to be Rs. 13,200 and that of house No. 36/47, Ram Mohan Ka Hata as Rs. 30,000. It appears that in the sale proclamation the price of house No. 36/ 47, Ram Mohan Ka Hata had been shown at a higher side because in his statement the judgment debtor has admitted that just before the auction one Radha Kishan had offered him Rs. 25,000 for it but he did not sell it thinking that the auction of the house might fetch more price, Now so far as house No. 28/142 Dwarikadhish Road is concerned it fetched a little more than what was expected, House No. 36/47, Ram Mohan Ka Hata might not have fetched the price that was mentioned in the sale proclamation but it certainly did fetch a price that was more or less equal to its actual price, it fetched Rs. 23,300 as against Rs. 25,000, its approximate value. Merely because it fetched Rs. 23,300 instead of Rs. 25,000 it cannot be said that it did not fetch proper price. Seeing everything as a whole we are satisfied that both the houses had fetched adequate price in the auction sale,
15. The above discussion brings us to the end of the case. We have discussed in detail all the points raised by the judgment-debtor with a view to show that the auction sale in this case had not been done fairly and properly but all these points have no merit in them. We are fully convinced that the auctioneers had conducted the auction sale in a fair and proper manner and we are also convinced that the two houses had fetched adequate price in the auction sale. We are really amazed how the court below held that there had been material irregularity in publishing and conducting the sale. The order passed by the court below is wholly erroneous and must, therefore, be set aside.
16. In the result, we allow this appeal, set aside the impugned order dated 21-5-1976 and confirm the auction sale with respect to house No. 36/47, Ram Mohan Ka Hata and house No. 28/142, Dwarikadhish, Road, Kanpur, The appellants will get their costs from the judgment-debtor throughout.