Mukerji, J.:— After stating the facts as above, thus proceeded:—
The learned Sub-ordinate Judge has misread the ruling in Harbans Lal v. Kundan Lal. 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 judgement-debtor to rely on some other grounds for the same purpose. In this case the application was based on the ground of material irregularity, and it was only by way of additional particulars that it was pointed out that two heavy incumbrances which did not exist had been notified. On the merits, therefore, the applicant has a good case. If the applicant succeeds, the case will have to go back to the court of first instance, because the lower appellate court has remarked that the auction-purchaser had no opportunity of meeting the allegation that the incumbrances notified did not in fact exist.
Mr. Piari Lal Banerji on behalf of the respondent has taken up the plea that no revision lay and he relies on the Full Bench case of Yad Ram v. Sundar Singh. That case is clearly distinguishable. In this case the learned Judge of the appellate court had to consider whether the allegation made on the 25th of October, 1924, could or could not be taken into consideration in deciding the application made on the 14th of October, 1924. While purporting to follow a ruling of this Court, he really misread that ruling and refused to consider the application of the 25th of October, 1924. If he had considered the application of the 25th of October, 1924 and had come to the conclusion rightly or wrongly that he should not consider the application because the judgement-debtor had no right to apply for an amendment of this previous application, I should have held that no revision lay. But he did not at all consider the application of the 25th, of October, 1924. He had jurisdiction to consider the matter and he refused to consider it. In doing so he acted with material irregularity. I hold that a revision does lie. I allow the application, set aside the order of the court below and also the order of the court of first instance and send back the case to the court of first instance.
Costs in this Court and in the lower appellate court will abide the result.
Application allowed.