Courtney Terrell, C.J:— Appeal no. 85 of 1931 is from a decision of the Subordinate Judge of Shahabad, the appellants being the judgment-debtors. The plaintiffs in the suit had obtained a decree against the judgment-debtors for a considerable sum of money and proceeded to sell certain properties belonging to the judgment-debtors as joint family property. The property was located in several distinct villages and it was advertised for sale in separate lots and ultimately sold. Certain of the judgment-debtors being share-holders in the defendants' family asked that the sale should be set aside under Order XXI, rule 90, of the Civil Procedure Code on the ground that there were irregularities in the conduct of the sale and that they had suffered loss or damage on account of such irregularities. The learned Subordinate Judge found as a fact, after considering the evidence, that there had been serious irregularities in the conduct of the sale inasmuch as the sale proclamation, had not been served on the spot and that the irregularity extended to all the lots which were ultimately sold. But in considering the application to set aside the sale of each and every lot he proceeded to divide the lots into two classes. Notwithstanding that the irregularity extended to the whole of the property sold, he pointed out that as to three of them, on his view of the evidence, no loss could be shewn to have been sustained in respect of those lots inasmuch as the sale price obtained was within measurable distance of the advertised value.
In support of the learned Subordinate Judge's decision it has been argued that the Court was perfectly entitled; having regard to the proviso to Order XXI, rule 90, to divide the sale into separate plots and to set aside the sale in respect of some only of the lots and I can well understand, that as a broad proposition that may well be true but the circumstances under which that can be done are limited only to cases, in my opinion, in which both the irregularity and the injury to the objector can be satisfactorily allotted to one part only of the sale in which case that part of the sale may properly be set aside. There may conceivably be other circumstances but in cases such as I have described the Court may well be justified in setting aside the sale. But here where the irregularity extends to the whole property and to all the lots it is not justifiable to retain the efficacy of the sale with respect to some of the plots only in which the sale price obtained cannot be shewn to be inadequate in view of the advertised sale value. On this point the judgment-debtors who have objected are, in my opinion, justified in their objection to the order of the learned Subordinate Judge and a fresh sale proclamation should be issued and the entire property put up for sale.
As to the appeal no. 81 of 1931 that objection was dismissed. It was an objection by one of the shareholders in the defendants' joint family property. The objection was dismissed for reasons into which it is unnecessary to go. The objection of the shareholders in appeal no. 85 of 1931 having been efficacious and the sale having been set aside it is not necessary to consider whether, or not the objection in appeal no. 81 of 1931 was justified and accordingly I would allow appeal no. 85 of 1931 with costs and as to appeal no. 81 of 1931 I would dismiss that appeal but without costs. Appeal no. 81 of 1931 was not pressed and we are not in a position to say anything as to its merits.
Khaja Mohamad Noor, J.:— I agree.
Appeal no. 81 dismissed.
Appeal no. 85 allowed.