INAMULLAH KHAN Vs. LALA SHAMBHU DAYAL

JUDGEMENT

(1.) This is really a first appeal from an order refusing to set aside a sale which has taken place in execution of a mortgage decree. The preliminary decree was passed on 19 April 1927, and the final decree on 2 December, 1927. The mortgagor became an insolvent in September 1927, but the case proceeded against him without impleading the Official Receiver. The auction sale took place on 27 April 1928. In the application which was originally filed the only ground that was taken was as to the gross inadequacy of the price. No specific irregularity of fraud in publishing or conducting the sale was set forth. By a subsequent application the judgment-debtor took the plea that the sale had been put down as No. 23 in the list, but the property was sold first and that in consequence a number of bidders could not be present as they had gone away for Friday prayers. It was also objected that the receiver was a necessary party and should have been impleaded. It was further pleaded that notice under Order 21, Rule 66, had not been served on the judgment-debtor. Last of all it was urged that the value of the property was between Rs. 16,000 and Rs. 17,000, but it was sold for the inadequate price of Rs. 1,975 only. All these objections have been overruled by the Court below.

(2.) In order to succeed it was incumbent on the judgment-debtor to show in the first instance that there was a material irregularity or fraud in publishing or conducting the sale. Ho cannot be allowed to go outside the scope of Order 21, Rule 90, in these proceedings. The learned advocate for the appellant is unable to show to us any 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. 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. On this ground alone the application is liable to be dismissed.

(3.) The oral evidence to show that the objector was in the village on the day when the notice under Order 21, Rule 66, was sent out to be served on him has been believed by the Court below. No serious discrepancies have been pointed out to us and the statement of the judgment-debtor as to his absence on 29 January 1928, when the notice was served, is uncorroborated by any other evidence. In any case the notice was affixed on the door of his house which was occupied by the other members of his family and there was thus good substituted service.