MOHAN LAL Vs. KALI CHARAN

JUDGEMENT

(1.) This is a judgment-debtor's appeal against an order of the learned Subordinate Judge of Budaun dismissing his application to set aside a sale.

(2.) The facts of this case are that a decree was passed in favour of Lieut. Raja Kali Charan against the appellant, Lala Mohan Lal. In execution of that decree certain property was put up for sale on the 20 of April 1926. On the 17 of April 1926 an application was presented signed by the judgment-debtor and the decree- holder praying that the sale fixed for the 20 be postponed for a month and that it was unnecessary to publish a fresh proclamation for sale. Upon the application being put up, the decree-holder's pleader stated that if fresh proceedings had to be taken, he did not consent to the sale being postponed. However, the Judge declined to postpone the sale. At the sale the property was bid for by Niranjan Lal, but Niranjan Lal had the names of himself and Indar Prasad recorded by the sale officer as the purchasers of the property. On the 27 of April 1926, an application was filed under Order 21, Rule 90 of the Civil P. C. by the appellant, Lala Mohan Lal, and he stated in the application the fact of time having been given by the decree-holder, and he being a resident of Bareilly thought that the sale would be postponed and, therefore, he could not attend the Court at Budaun; that there were serious irregularities in the conduct of the sale and that certain encumbrances were notified to be on the property which were contrary to facts, that the property was worth Rs. 10,000 and its approximate value was Rs. 7,279- 11-0 and the sale having taken place for a sum of Rs. 2,150, the price was very low. There were various other allegations about irregularities in the sale proceeding. The auction-purchaser opposed this application and the learned Judge of the Court below dismissed the application on the ground that in his application under Order 21, Rule 90 the judgment-debtor had impleaded one and not both the auction-purchasers. It has been urged by the advocate for the appellant that under Order 21, Rule 90 it was unnecessary to mention the names of the auction- purchasers. All that was incumbent on the Court hearing the application was that it should direct notice of the application to be issued to the auction-purchasers, and it was no part of the duty of the judgment-debtor to name in his application all the auction-purchasers. His contention further was that the case of Karamat Khan v. Mir Ali Ahmad [1891] A.W.N. 121. and that of Ali Gauhar Khan V/s. Bansidhar [1893] 15 All. 407, were no longer good law in view of the provisions of the Code now. It is unnecessary to decide the question, as the matter, in our opinion, must be decided on another point.

(3.) The learned vakil for the respondent has supported the order of the learned Subordinate Judge on the ground that it was not open to the judgment-debtor to come forward and challenge the details entered in the sale proclamation, as he, upon the notice which was issued to him under Rule 66, ought to have appeared before the Court and brought to the notice of the Court that there were incorrect statements in that proclamation.