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Judgment
Kailasam, J.—This is an appeal by the defendant in O.S. 89 of 1957 against the order of the Subordinate Judge, Tiruchirapalli. dismissing
his application, E.A. 565 of 1961, filed under O. 21 R. 90and Ss. 47and 151of the C. P. Code, for setting aside a sale dated 2nd November
1960 in favour of the respondent (plaintiff decree-holder) in O.S. 89 of 1957. There are three items of property sold in the Court auction on 2nd
November 1960. Items 1 and 2 are landed property and were purchased by the defendant in 1945, for a sum of Rs. 6000. Item 3 is a house in
the village of Manachanallur. These three items were mortgaged in favour of the plaintiff for Rs. 10,000. The mortgagee filed a suit under the
mortgage and obtained a preliminary decree on 19th November 1957. The final decree was passed on 17th March 1958. He filed an execution
petition E.P. 344 of 1958 and the sale was posted on 23rd December 1959. The defendant filed E.A. 884 of 1959 and prayed for three months''
time for payment of the decree amount, waiving fresh proclamation. The properly was again brought to sale on 9th March 1960 but was not sold
as there were no bidders. The decree holder filed E.A. 189 of 1960 for reduction of the upset price. But the defendant appeared and took time.
The petition was posted to 19th April 1960, but no counter was filed by the defendant. The upset price was reduced. Then again the decree
holder filed E.A. 218 of 1960 for leave to bid and set off. Notice was given but the petition was not opposed by the defendant. The property was
posted for sale on 27th July 1960. But as there were no bidders, the sale was not effected. Again the decree-holder applied for the reduction of
the upset price and served notice on the defendant. This petition was not also opposed and the upset price was reduced. The sale was ultimately
held on 2nd November 1960 when the property (items 1 to 3) was purchased by the decree-holder himself for Rs. 3001, Rs. 3001 and Rs. 2501
respectively.
E.A. 545 of 1961 out of which this appeal arises was filed by the defendant for setting aside the sale held on 2nd November 1960. The
petitioner alleged that there was fraud and material irregularity in publishing and conducting the sale. He listed seven grounds of material irregularity.
It was contended that there was discrepancy between the value of the property stated to the proclamation and the real value. It is also alleged that
the price for which the property was sold was grossly inadequate. It is also contended that the omission in the sale proclamation to mention the
correct revenue or rent payable to the Government resulted in low price. It was further contended that the property was worth very much more but
was sold for a grossly inadequate price. According to the petitioner, in the landed property sold, there were six acres of nanja under cultivation
irrigated by two wells. According to him, these six acres were worth Rs. 12,000 where paddy, cholam and kumbu crops were raised. He further
stated that he spent about Rs. 25,000 for constructing a house and that the property was worth about Rs. 40,000. He valued the nanja lands at
Rs. 25,000. He was paying the house tax in the village on a valuation of Rs. 5000. The petitioner also examined the President of the Panchayat
who deposed that, in the Panchayat books, the house was valued at Rs. 5000. On behalf of the decree-holder, R.W. 1, the karnam of Therku
Sirupathur village was examined. In cross-examination, he admitted that in a portion of the property paddy was raised and it was irrigated by water
from a kuttai.
On an inspection on 27th July 1959 the Amin fixed the value of the three items at Rs. 7000, Rs. 6000 and Rs. 5000 respectively, that is, for a
total value of Rs. 18,000. The value was reduced to Rs. 5100, Rs. 4600 and Rs. 4000 on 23rd December, 1959. On 8th April, 1960 the value
was reduced to Rs. 4,000, Rs. 3,000 and Rs. 2,500 respectively, totalling Rs. 9,500. On 27th July, 1960, the value was reduced to Rs. 3825, Rs.
3,450 and Rs. 3,000 totalling Rs. 10275. Ultimately on 2nd November, 1960 the upset price was reduced to Rs. 3,000, Rs. 3,000 and Rs. 2,500
totalling Rs. 8,500. The property was purchased by the decree-holder for Rs. 8,503.
In 1945, the lands comprised in items 1 and 2 were purchased for Rs. 6,500. Certain improvements were made and it is admitted that in item 2,
59 cents are nanja and in about 1 acre 67 cents paddy crop was raised. There can be no doubt that certain improvements were effected. The
house even in the panchayat registers was valued at Rs. 5,000. There can be no doubt that the real value of the house might have been much more
than Rs. 5,000, Both the properties were mortgaged for Rs. 10,000 in 1949. Taking into account the general rise in prices, there can be no doubt
that the real value could not have been less than the original value given by the Amin on 22nd July, 1959, in respect of three items at Rs. 7,000, Rs.
6,000 and Rs. 5,000. In this view, there cannot be any doubt that the property was sold for a gross undervalue. But merely because the property
was sold for an undervalue, the sale cannot be set aside. Under O. 21, R. 90 a person applying to set aside a sale must prove material irregularity
or fraud in publishing or conducting it. If material irregularity or fraud is proved, the sale shall be set aside, if the Court is satisfied that the applicant
had sustained substantial injury by reason of such irregularity or fraud. In this case, apart showing that the property had been purchased by the
decree-holder for an undervalue, the judgment debtor has not succeeded in proving any fraud on the part of the decree-holder. It is not disputed
that the judgment debtor had notice at every stage of the proceeding. When the sale was pasted on 23rd December, 1959, he applied for three
months'' time and waived fresh proclamation. In all the execution applications where the upset price was reduced notice was given to the judgment
debtor and he did not oppose any of these petitions. The present case for the judgment debtor that he believed the representation of the decree-
holder that the matter would be compromised and therefore did not take any steps is not proved by any evidence and was therefore rightly
rejected by the lower Court. It was contended by Mr. Gopalaswami Iyengar that though it had been proved that 59 cents in S. No. 517 were
nanja and in 1 acre 67 cents paddy had been cultivated, the proclamation of sale mentioned the entire 6 acres 62 cents as punja and that because
of the failure to describe the property as irrigable to the extent of 2 acres 26 cents, the sale did not fetch a proper price. It is not disputed that in 2
acres 26 cents paddy cultivated and that it is irrigated by water from a kuttai and a well.
But in the petition the sale was not attacked on the ground that the proclamation did not mention that 2 acres 25 cents were nanja lands. This
contention obviously was not raised in the Court below, as it has not been dealt with by the lower Court. It is admitted that in the documents under
which the property was purchased, viz., Ex. B-1, B-3 and B-6, the property is described only as ayan punja. In the application for setting aside
the sale, the judgment debtor has also described the property as ayan punja. But this circumstance alone will not absolve the decree-holder for the
incorrect description in the proclamation. But as pointed out by Mr. Raghavachari the proclamation was settled when the property was brought to
sale in 1959 describing it as ayan punja. The judgment debtor applied for three months time waiving fresh proclamation. It cannot be disputed that
the judgment debtor could have known the correct description and he did not take steps to correct the description. It is also clear that by waiving
fresh proclamation he accepted the correctness of the description or in any event was satisfied that the description would not in any way affect the
price that might be got in the sale.
In Arunachalam v. Arunachalam 12 Mad. 19 (P.C.) the Privy Council observed at page 25 :
It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment debtor could lie
by and afterwards take advantage of any misdescription of the property attached and about to be sold, which he knew well, but of which the
execution creditor or decree-holder might be perfectly ignorant-that they should take no notice of that, allow the sale to proceed, and then come
forward and say the whole proceedings were vitiated. That, in their Lordships'' opinion, cannot be allowed, and on that ground the High Court
ought not to have given effect to this objection
In Girdhari Singh v. Hurdeo Narain Singh, 3 I. A. 230 there was some mistake in the proclamation that sudder jumma was quoted at Rs. 3000
and odd instead of Rs. 8000 and odd. In the case cited, when the property was brought to sale, the judgment-debtor applied for postponement of
the sale stating that he wished to raise money on the terms of ""the attachment and the notification of sale being maintained"". Their Lordships of the
Privy Council observed that the judgment-debtor could not properly take objection to that notification by stating that there was an error in it and
that the petition amounted to 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. The judgment debtor in the present case having stood by the proclamation and not having taken any steps to correct
the description in the proclamation and having waived fresh proclamation, he cannot be heard to contend that because of the incorrect description
in the proclamation the sale should be set aside. Further as already observed, this ground was not put forth as one of the grounds of irregularity for
setting aside the sale. Though on the facts I am satisfied that the property purchased by the decree-holder himself for a gross under valve, the sale
cannot be set aside as the judgment debtor has not succeeded in proving any material irregularity or fraud resulting in injury by reason of such
irregularity. The appeal is dismissed with costs.