GOUR KISHORE BASAK Vs. CHANDRA MOHAN BANDOPADHAYA

JUDGEMENT

(1.) The present appeal is against an order of the first Subordinate Judge of Mymensingh, dated the 21st March 1910, rejecting an application of the judgment-debtor, appellant, to set aside a sale. The lower Court has found that with regard to plot No. 1, which is a revenue paying property, there was a little irregularity in publishing the sale of that plot inasmuch as the sale proclamation does not appear to have been affixed in the Collectorate. It also found that there was neither fraud nor collusion in the matter of the sale and that the judgment- debtor has not been able to show that the properties were sold at inadequote prices or that he had sustained substantial injury thereby.

(2.) On behalf of the appellant, the following points have been taken before us in appeal: (1)That the properties have been undervalued and that the lower Court should have held that that was an irregularity sufficient to set aside the sale on the ground of substantial injury caused. (2) That as no time was mentioned in the sale proclamation, the lower Court shoald have held that the sale was illegal and could not stand. (3) That the sale should have been set aside and the properties re-sold on the ground that the whole of the purchase money was not deposited in Court within the time allowed by law.

(3.) In support of the above points, it is contended that the evidence shows that some of the properties were under-valued in the sale proclamation. The lower Court has held that the judgment-debtor has not sustained substantial injury. The onus was on the judgment-debtor to prove that he has sustained substantial injury. We find that he has failed even to produce the deeds of sale under which he purchased the properties nor has he been examined as a witness. It appears that the judgment-debtor was called upon by the decree-holder to produce his kobalas but he did not do so. It is stated that he is a very old man and was ill. There is, however, no evidence to prove that owing to his illness, he could not produce the documents in question. Witness No. 2 for the appellant says that the judgment debtor is ill and so he has not come to-day." We think that this is no evidence to show that he was really so ill that he could not come to Court to give his evidence. This witness was the son-in-law of the judgment-debtor. Witness No. 1, examined on behalf of the appellant says, that: "I know not of any sale proclamation of any of the above named taluk." It appears from his evidence that this man is a Kaviraj and he occasionally stays at his patient s houses for four or five days together-but he was not asked as to whether or the day of the publication of the sale proclamation, he was at home or not. We are of opinion that his evidence is of no value on the point. The witnesses who were called to prove the inadequacy of price are not definite in their statements. Witness No. 1 is not in a position to say what are the incomes, gross or net, of the properties sold. Similarly, wit-, ness No. 2 says the same thing. In these circumstances, we fail to see how the prices fetched by the sale are said to be inadequate. On a mere question of irregularity, the sale cannot be set aside. It must be shown that the irregularity has resulted in substantial injury. There was no fresh proclamation. We, however, find two petitions filed on behalf of the judgment-debtor, one dated the 30th October 1908, and the other dated the 21st December 1908, in both of which he prayed for time, and waived his right to claim a fresh proclamation.