JUDGMENT Mukerji, J.
1. This is an application to revise an order of a Subordinate Judge of Aligarh who on appeal set aside an order of the Munsif setting aside -a sale held in execution of a decree.
2. It appears that a certain property of the judgment-debtor was advertised for sale and a sale actually took place on the 17th of September 1924. The judgment-debtor, who is the petitioner before the Court, on 14th October 1924 took exception to the sale on the ground that there was material irregularity in the publishing and conducting of the sale and that the price fetched was consequently too small. On the 25th of October 1924 the petitioner made an application pointing out that two encumbrances to the total amount of Rs. 5,807, had been shown in the sale proclamation, whereas no such encumbrances actually existed at the date of the advertisement. The Munsif found that this was a fact and on that ground he set aside the sale.
3. On appeal the learned Subordinate Judge held that the learned Munsif was not authorised to look into the matters contained in the application of the 25th of October 1924 inasmuch as that application had been made more than thirty days after the sale. He relied on the case of Harbans Lal v. Kundan Lal 21 A. 140 : A.W.N. (1898) 212 : 9 Ind. Dec. (N.S.) 799.
4. There can be no doubt that the learned Subordinate Judge has misread the ruling. All that was laid down there was that when an application is made for setting aside the sale on the ground of material irregularity in publishing and conducting a sale and consequent substantial loss it is not open to the judgment-debtor to rely on some other ground for the same purpose. In the case quoted the application of the judgment-debtor to set aside the sale failed on-the ground of material irregularity. But the learned Judges in the Courts below did set aside the sale on the ground that there had not been effected an attachment previous to the sale. This Court pointed out that this was a new point entirely beyond the scope of Section 311 of the old C.P.C.
5. In this case the application was based on the ground of material irregularity and it was only by way of additional particulars that it was pointed out that two heavy encumbrances which did not exist had been notified.
6. On the merits, therefore, the applicant has a very good case. If the applicant succeeds the case will have to go back to the Court of first instance because the lower Appellate Court has remarked that the auction-purchaser had no opportunity of meeting the allegation that the encumbrances notified did not in fact exist.--Mr. Peary Lal Banerji on behalf of the respondent auction-purchaser has taken up the plea that no revision lay and he relies on the Full Bench case of Yad Ram v. Sunder Singh 74 Ind. Cas. 778 : 21 A.L.J. 313 : (1923) A.I.R. (A.) 392 : 45 A. 425 (F.B.). That case is clearly distinguishable from the case before me. In that case the question arose whether a certain party had a right to apply to set aside the sale. The Judge in the Court below followed a ruling of this Court and held that the applicant could not make an application for setting aside a sale. The question was whether in so acting the Court below acted with material irregularity in the exercise of its jurisdiction. It was held that it did not.
7. In this case, the learned Judge of the Appellate Court had to consider whether the allegation made on the 25th of October 1924 could or could not be taken into consideration in deciding the application made on 14th October 1924. The learned Judge while purporting to follow a ruling of this Court really misread that ruling and refused to consider the application of the 25th of October 1924. If the learned Subordinate Judge had considered the application of the 24th of October 1924 and, had come to the conclusion rightly or wrongly that he should not consider the application because the judgment-debtor had no right to apply for an amendment of his previous application I should have held that no revision lay. But the learned Subordinate Judge did not at all consider the application of the 25th of October 1924. He had the jurisdiction to consider the matter and he refused to consider it. In doing so - he acted with material irregularity. I hold that a revision does lie.
8. The result is that I allow the application, set aside the order; of the Court below and also the order of the Court of first instance and send back the case to the Court of first instance. The application of the applicant to set aside the sale will be considered after the auction-purchaser, Girdhari Lal, has been given an opportunity to meet the allegations made in the applications dated the 14th of October 1924 and the 25th of October 1924. The learned Munsif would treat the application of the 25th of October 1924 as an application to amend the previous application of the 14th of October 1924 and will decide whether or not he would allow the earlier application to be amended by the addition of the allegations contained in the petition of the 15th of October 1924. Costs in this Court and in the lower Appellate Court will abide the result.