The second proviso to Order 21, Rule 90 of the Civil Procedure Code does not bar a judgment-debtor from challenging a sale on the ground of fraud in the sale proclamation, even if the judgment-debtor failed to attend the drawing up of the proclamation and raise objections.

CHAKRAVARTTI, C. J.

( 1 ) THIS is a Rule calling upon the opposite parties to show cause why orders passed in their favour by the Courts below, dismissing an application made by the petitioners under Order 21, Rule 90, Civil P. C. , should not be set aside. The Rule involves a point of some interest.

( 2 ) THE parties are co-sharers. It appears that the opposite parties made a payment of revenue, a portion of! which was payable by the petitioners. Thereafter, as was to be expected, they brought a suit for re-imbursement in order to recover from the petitioners the amount of revenue which it was their duty to pay but which the opposite parties had been compelled to pay on their behalf. The suit was decreed in due course and execution was taken out against the undivided onethird share of the petitioners in the common homestead of the parties. The property put to sale appears to have been divided into four lots and the total price mentioned in the sale proclamation was Rs. 850/ -. The price "fetched at the sale was Rs. 929-0-6 the purchasers being the execution-creditors themselves. Both the Courts have found that such price was very 'inadequate'.

( 3 ) THE petitioners did not leave the sale unchallenged and made the usual application under Order 21, Rule 90, Civil P. C. The application contained the usual allegations of a wholesale character charging the opposite parties with fraud and irregularity of every possible kind. It was alleged that the relevant notices had all been suppressed in collusion with the process servers and that the sale proclamation itself had been caused to be drawn up in violation of the requirements of Order 21, Rule 66, Civil P. C. with a view to conveying to the intending bidders a misleading impression about the property offered for sale. It was also alleged that the price actually fetched at the sale was so low that it itself constituted evidence of fraud in publishing and conducting the sale.

( 4 ) BOTH the Courts below have found that the allegations made with regard to the suppression of notices were irresponsible and not true in fact. They have also found in express terms that notice of the drawing up of the sale proclamation was served on the petitioners, but in spite of receiving that notice, they did not attend at the drawing up of the proclamation. Chiefly on that ground the Courts below have held that it was not open to the petitioners to ask the Court to set aside the sale on the ground that the proclamation on which the sale had taken place was defective and that the valuation of the property entered in it at the instance of the execution creditor was fraudulently low. Although the Courts did not refer expressly to the second proviso added by this Court to Order 21, Rule 90, Civil P. C. , there can be no doubt that it was that provision which they had in mind their decision was in accordance with what they considered to be its true meaning. The reason upon which the Courts below proceeded appears from one sentence which I might quote from the judgment of the learned District Judge"hence there cannot be any escape" observed the learned Judge, "from the conclusion that the appellants not having preferred any objection to the drawing up of the sale proclamation after receipt of notices under Order 21, Rule 66, Civil P. C. are precluded from challenging the sale on the ground of any defect in the sale proclamation, including the valuation. "

( 5 ) IT was contended on behalf of the petitioners that irrespective of what their own conduct might have been the Court had a duty to check the correctness of the information inserted by the opposite parties in the sale proclamation and that the opposite parties themselves had a duty to be honest. That argument was obviously based on the provisions of Sub-rule (3) of Order 21, Rule 66, Civil P. C. which imposes upon an applicant for an order for sale the duty of supplying and authenticating the matters to be specified in the proclamation and Sub-rule

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