B.L Yadav, J.:— This is a First Appeal from Order dated 8-2-1991 refusing to set aside the auction sale under Rule 92 of Order 21 of the Code of Civil Procedure, 1908 (for short the Code).

2. The facts relating to the case are that a decree for recovery of money was passed in favour of the decree-holder respondent and against the judgment debtor appellant. In the execution of that decree, the immovable property of the judgment debtor was attached and was put to auction sale. The decree-holder respondent was the highest bidder hence the auction sale was confirmed in his favour. The judgment debtor preferred an objection under Order 21 Rule 90 of the Code alleging irregularity and fraud in publishing and conducting the sale as required by Rule 90(1) of Order 21 of the Code. Learned District Judge has refused to set aside the sale under Rule 92 of Order 21 of the Code, hence the present appeal from order refusing to set aside sale has been preferred by the judgment debtor. Sri Rajendra Dobhal, learned counsel for the appellant has urged that no information was given about the auction sale and that the decree-holder himself was the auction purchaser. He further urged that the amount offered at the auction sale was inadequate and fraud was committed in publishing and conducting the sale, consequently the order for setting aside the auction sale ought to have been passed by the learned judge. He has erred in not considering the objections under Rule 90 of Order 21 of the Code. He further urged that for wheat crop standing in the plot, no auction was held and no amount has been offered by the auction purchaser as required by Rule 74 of Order 21 of the Code.

3. Having heard learned counsel for the appellant, I am of the view that the appeal is devoid of merits and, is liable to be dismissed.

4. The court below has recorded a finding of fact that on so many occasions, the judgment debtor was informed about the auction sale. The Vakil commissioner had also informed the Judgment debtor before the auction sale. Apart from that, proclamation was also made in the newspaper named “Hindu Hardwar”. The court has also taken precautions to get the notices about the auction sale published on the notice board of the Tehsil and also on the notice board of the civil Court. Thus, court below has recorded a finding of fact that there was sufficient publication made in the newspaper and by other modes the appellant was informed before auction sale. As regards the next limb of argument about the inadequacy of the sale consideration, that itself cannot be material point to be considered.

5. In the court below, however, at one stage in the application (paper No. 23), the Judgment debtor has indicated the price of the land @ 500/- per Nali and in total the judgment debtor has indicated the price to be 83000/-. On this indication of the price, the counsel for the decree-holder in the court below had urged that even if the area of 17 Nali of Khata No. 7 may be left in favour of the Judgment debtor, he would have no objection and out of Khata 28 for an area of 66 Nali, confirmation of sale may be made. The decree-holder in his application (paper 23Ga/2) has assessed the price @ 500 rupees per Nali of Khata No. 28. Calculating the area of 66 Nali of Khata No. 28, the price comes to about Rs. 33000-. The auction has been made for an area of 66 Nali for a sum of Rs. 30,850/-. The court below has confirmed the auction sale only for 66 Nali area of Khata No. 28 for a sum of Rs. 33,000/- and thus the amount of auction sale was enhanced from 30840/- to 33,000/- and the balance amount of Rs. 2150/- was ordered to be paid by the auction purchaser decree-holder to the judgment debtor. On these findings of the court below, it cannot be said that the amount of auction sale was inadequate.

6. As regards the submission that the wheat crop was not put to auction sale, suffice it to say that the auction was for the immovable property and not for the movable property as provided under Rule 74 of Order 21 of the Code. The attachment was made in respect of the immovable property whereas, the wheat crop was movable property, consequently there was no question of putting the wheat crop to auction sale. The submission of the learned counsel for the appellant in this regard has no substance.

7. The material point for determination in this appeal is that there is an amendment made by the Allahabad High Court in Rule 90 of Order 21 of the Code, which reads as follows:

“(1) Renumber the rule as sub-rule (1) and substitute the following for the proviso:

Provided that no application to set aside a sale shall be entertained:

(a) Upon any ground which could have been taken by the applicant on or before the date on which the sale was drawn up; and

(b) ……………….

Provided further that no sale shall be set aside on the grounds of irregularity or fraud unless upon the facts proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.”

8. A bare reading of the aforesaid Rule 90, as amended by Allahabad High Court makes it crystal clear that no application to set aside a sale shall be entertained by the decree-holder, purchaser or any other person entitled to a share in rateable distribution, or whose interests are affected, unless he provides (i) material irregularity or fraud in publishing or conducting the sale, (ii) substantial injury to the applicant (iii) such injury must be connected with the material irregularity or fraud. All these conditions must exist. It is to be noticed that Rule speaks of irregularity and not illegality if illegality is proved it makes the rule void. In case the act complained of amounts to material irregularity the same can be set a side on proof of substantial injury. Mere inadequacy of price is no ground for setting aside a sale. The inadequacy must have been occasioned by some irregularity. In the absence of proof, however, to the contrary, the presumption is that the price fetched at a court sale is adequate.

9. In view of Allahabad High Court Amendment, the points sought to be raised by the learned counsel for the judgment debtor, could have been taken before the sale was drawn, hence these points cannot be taken and raised in the appeal before this Court. The aforesaid main provision of Rule 90, before its amendment by Act 104 of 1976, stands modified to some extent by the proviso added by Allahabad Amendment. The object of the code as given in the preamble is to consolidate and amend the laws relating to the procedure to the courts of civil judicature. The object of consolidating act is to collect the statutory laws bearing upon the subject. The consolidating statute need not be interpreted by looking to the state of things existing at the time of previous acts.

10. Sub-rule (3) of Rule 90 of Order 21 has been added following the Allahabad High Court Amendment barring entertainment of any application to set aside sale upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up. An explanation is added to Rule 90, just to stress in respect of a thing which would ordinarily not appear from the provision. The explanation to Rule 90, has been added to put the matter beyond doubt that the mere absence or defect in attachment shall not by itself be a ground to set aside sale as there had been a divergence of opinion on the subject.

11. The Allahabad High Court adds proviso to the principal clause with the object of taking out that principal clause which is included in it and which legislature desires to be taken out of it. The function of a proviso, in my view is, to except and deal with a case which would normally fall within the general language of the main enactment. The Proviso (a) has been added as sub-rule (3) and proviso (b) is that no application to set aside sale shall be entertained unless the applicant deposits twelve and half percent of the sum realised by sale. Just an irregularity or fraud in conducting the auction sale is not sufficient to set aside the sale unless the court is satisfied that censequent upon such irregularity or fraud, the objector has sustained substantial injury.

12. In the present case, there is neither any proof nor any allegation that the judgment debtor has sustained any substantial injury. As he failed to pay the decretal amount, consequently his property was put to auction sale on being attached after giving due publication in the news paper referred to above and also after giving notice to the judgment debtor by a Vakil commissioner and also after pasting it on the notice board of the Civil court as well as on the notice board of the Tehsil. Therefore, it cannot be said that the judgment debtor had no notice and he has suffered injustice.

13. Learned counsel for the appellant has relied upon a decision of the Supreme Court in Shalimar Cinema v. Bhasin Film Corporation.1 That was a case where none of the bidders, who had participated in the first auction participated in the second auction. Under those circumstances, it was inferred that no announcement as to adjournment of the auction was made on the spot but in the present case, the facts are entirely different. Hence that case is of no assistance to the appellant.

14. Reliance was also placed on Navalkha & Sons v. Ramayan Das.2 That was a case where the auction sale was held without due publicity. The Supreme Court ruled that in such matters where no publication was made, prejudice was inherent. In that case the auction sale was confined only to the two named persons and it was not participated by the public in general. Consequently, it was not a public sale wherein every member of the public was at liberty to participate and there was denial of opportunity to purchase the property by persons who would have taken part in the auction bid, but for want of notice.

15. As already stated above, in the present case a finding of fact has been recorded that sufficient publication was made in the newspaper and the notices were sent through Vakil commissioner and were also pasted on the notice board of the Civil Court as well as on the notice board of the Tehsil. A further finding has been recorded that reasonable price was fixed at the auction sale, consequently, the principle laid down in the case of Navalkha & Sons v. Ramayan Das, (Supra) has been complied with. I do not find any merit in this appeal. It is accordingly dismissed. A copy of this order may be given to learned counsel for the parties on payment of usual charges within a fortnight.

16. Appeal Dismissed.