RAM SARAN DAS Vs. GIRDHARI LAL

JUDGEMENT

(1.) This is an application to revise an order of a Subordinate Judge of Aligarh who on appeal sat 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 17 of September 1924. The judgment- debtor, who is the petitioner before the Court, on 14 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 25 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 authorized to look into the matters contained in the application of the 25 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/s. Kundan Lal [1898] 21 All 140. 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 Civil P.C.