JUDGMENT
1. The present appeal arises out of an application made under the provisions of Sections 311 and 244 of the Code of Civil Procedure to set aside the sale of a property called Bibir Bagan. The grounds on which the application was based were that the property was undervalued in the sale proclamation, that there was a suppression of the service of process and the sale proclamation and that this was done by the decree-holders fraudulently for the purpose of selling the property at an insufficient price. It was contended that the property was sold at only Rs. 10, 276 whereas, in fact, its value was Rs. 60,000 and that, in consequence, the judgment-debtor had suffered substantial loss. Six witnesses were examined on behalf of the petitioner to prove the allegations on which the application was based. The learned Subordinate Judge was of opinion that the evidence of those witnesses was not entitled to reliance. In the first place, he found that the value of the property was not Rs. 60,000, as alleged by the applicant, but that the value at which it was sold, namely, Rs. 10,276 was its fair value. He disbelieved the evidence of the witnesses examined for the applicant to prove that there was a suppression of the service of notices and he came to the conclusion that the applicant had failed to prove that he had suffered any loss from any irregularity in publishing or conducting the sale or from any fraud on the part of the decree-holders. He, therefore, rejected the application with costs.
2. The judgment-debtor has appealed, and, in support of the appeal, it has been contended that the lower Court has erred in arriving at the conclusion that the value of the property was not Rs. 60,000 as alleged by the applicant but was only Rs. 10,276. The evidence adduced to prove the value of the property has been road to us and, after considering it, we see no reason for holding that the conclusion at which the learned Judge of the lower Court has arrived with regard to the value of the property is incorrect. It seems that the property consists of rather under 20 bighas of land, that on this land there are three useless tanks and that more than half of the land is waste and low, which during the rainy season is liable to inundation. As regards the land occupied by tenants, it appears that certainly one piece, if not more, has a masonry building on it and it is not impossible that the tenants have permanent right in the land occupied by them. In these circumstances, we think that no grounds have been made out which would justify us in differing from the opinion at which the learned Judge of the lower Court has arrived with regard to the value of the property.
3. It has, however, been next contended that the sale should be set aside on the ground that there was in the sale proclamation such a gross understatement of the value of the property on the part of the decree-holders as would itself amount to a fraud and would dissuade possible purchasers from bidding for the property on the ground that there was some defect in the title, and, in support of this contention, the cases of Saadatmund Khan v. Phul Kuar L.R. 25 L.A. 146; 2 C.W.N. 550; 20 A. 412 and Mohamad Kala Meah v. A.V. Harperink; 13 C.W.N. 240; 9 C.L.J. 165; 6 A.L.J. 34; 5 M.L.T. 126; 11 Bom. L., R. 227 I.L.C. 122, have been relied on. In our opinion, these two cases are not on all fours with the present case. The second case is clearly different as in that case, the applicant to set aside the sale was the auction purchaser who proved that he had been misled by misrepresentations as to the property made by the selling officer at the time of the sale, and their Lordships of the Privy Council were of opinion that the sale was bad on the ground of that misrepresentation. The case of Saadatmund Khan v. Phul Kuar (1) is also in our opinion distinguishable from the present; for, in that case, the property which was valued at Rs. 9,000 was sold for Rs. 670 and it would appear that, in view of that fact and the circumstance that there was a misstatement of the value of the property so glaring that it appeared to their Lordships that it could hardly have been made in good faith and such that it would be likely to mislead possible bidders, their Lordships were of opinion that such a misstatement was not an ordinary irregularity but was, in fact, something more. In the present case, we have already noticed that the property has been sold for what the lower Court has found to be its fair value and, therefore, the misstatement on the part of the decree-holders has not resulted in the property being sold at a loss as happened in the case on which reliance has been placed. In the present case, the rent received from the property appears to have been a little over Rs. 10 per annum and we have already mentioned that more than half of the property is waste, that there are three useless tanks on it and that the rest of the property seems to be occupied by tenants as to whom there seems to be some doubt as to whether they have not a permanent right in the property. Before the decree-holders were allowed to bid at the sale, the Judge holding the sale fixed the upset price and he fixed it at Rs. 2,000 without any objection by the judgment-debtor and, when the property was put up for sale, that was the upset price which was mentioned by the auctioneer. It is true that the decree-holders afterwards bid up to a very high sum for the property at the time of the sale, but the learned Subordinate Judge has found and we see no reason to differ from him that at the time of the sale there was keen competition for the property and, that being the case, it was not impossible that the decree-holders might have come to the conclusion at the time of the sale that the property was of a higher value than they were led to believe at the time when they filed the sale proclamation. The present case is not, in our opinion, on all fours with the two cases decided by their Lordships of the Privy Council on which reliance has been placed and, as the lower Court has come to a distinct finding that the property was sold for a fair value, we do not think that the points taken, in support of the appeal can be maintained.
4. The result, therefore, is that the judgment and order of the lower Court are affirmed and the appeal is dismissed with costs. We assess the hearing fee at ten gold mohurs, 5 gold mohurs to the auction purchaser and 5 gold mohurs to the decree-holders.
