Walsh and Banerji, JJ.:— This is a judgement-debtor's appeal against an order of the learned Subordinate Judge of Budaun dismissing his application to set aside a sale.
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 20th of April, 1926. On the 17th of April, 1926, an application was presented, signed by the judgement-debtor and the decree-holder, praying that the sale fixed for the 20th 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 27th of April, 1926, an application was filed under order XXI, rule 90, of the Code of Civil Procedure 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 XXI, rule 90, the judgement-debtor had impleaded one and not both the auction-purchasers. It has been urged by the advocate for the appellant that under order XXI, rule 90, it was unnecessary to mention the name 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 judgement-debtor to name in his application all the auction-purchasers. His contention further was that the case of Karamat Khan v. Mir Ali Ahmad(1) and that of Ali Gauhar Khan v. Bansidhar(2) 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.
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 judgement-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.
The other points raised by the judgement-debtor have all been found by the court below to be incorrect, namely, that there were no irregularities as alleged by the judgement-debtor. The court below had no doubt come to the conclusion that the property sold was free from encumbrances but that encumbrances had been notified in the sale proclamation. He says:—
“The property put to sale was 2 biswas out of 5 biswas 4 biswansis and odd. Two encumbrances of the 30th of September and the 27th of October, 1920, were notified. This property is of patti Ram Prasad, Khata Khewat No. 9. The 4 biswansis only of this patti are mortgaged in the bond of the 30th of September and 3 biswansis are mortgaged in the bond of the 27th of October. They have a burden over 3 biswas and 4 biswansis only. After deducting 2 biswas to be sold in this decree there remain more than 3 biswas and 4 biswansis. When property can he assigned to all the mortgages without overlapping the share mortgaged in any one of them, the property mortgaged in one bond cannot be said to be mortgaged in the other.”
We have come to the conclusion that the judgement-debtor cannot raise this question inasmuch as it was open to him to point out to the court that the encumbrances, as mentioned by the decree-holder and certified to by the registration office, ought not to be entered in the sale proclamation, as it was possible to assign different portions of the property to the different mortgages. In the absence of the judgement-debtor it was impossible for either the court or the decree-holder to find out whether the property now sold was or was not subject to the two other mortgages. The law has been now made clear by the additions to rule 90 made by the rules framed by this Court under the rule-making powers, but those rules do not govern the facts of the present case; but we see no reason to hold that the law was any different from what the law has now been declared by the rules to be the law applicable to such cases.
We are, therefore, of opinion that this appeal must fail and we dismiss it with costs.
Appeal dismissed.