The omission to specify the hour of sale in an auction sale is a material irregularity that can be challenged under Order 21, Rule 90, C.P.C., provided that the judgment-debtor was not given an opportunity to bring the irregularity to the court's notice before the sale was concluded.

ORDER :- This petition in revision is against the appellate Order of the learned Subordinate Judge, Puri, setting aside the order of the executing court and dismissing the petitioners petition under O. 21, R. 90, C.P.C. The petitioner is the judgment-debtor and the opposite party is the decree-holder-auction-purchaser. A two storeyed building of the petitioner in the town of Puri had been attached in the execution proceeding and one of the dates for sale had been fixed against 20-6-56.

On that day certain part payment was made by the petitioner, and the petitioner prayed for time, waiving issue of fresh sale proclamation. The learned Munsif fixed 20-7-56 for payment of the balance and ordered that in default of such payment the said sale would take place at 12 noon of that date. On 20-7-56, the petitioner filed a petition for time and again waived issue of fresh sale proclamation, and the court allowed time till 20-8-56 for full payment of the balance. There was no express order of the court that failing payment sale would take place that day.

Again, on 20-8-56, the petitioner made a part payment and filed a petition for time waiving issue of fresh sale proclamation and the court granted him time as a last chance till 21-9-56, but the court did not expressly order adjournment of sale to that date. On 21-9-56, another petition for time was filed on behalf of the petitioner waiving issue of fresh sale proclamation. This petition was rejected and the Court fixed the next day for sale; but no hour was fixed by the court for holding the sale. The sale was conducted the next day. The decree-holder was the only bidder in the auction sale and the sale was knocked down in his favour for Rs, 5000/-.

2. The petitioners case in his petition under Order 21, Rule 90, C.P.C. was that the building sold for Rs. 5000/- was worth Rs- 50,000/-; and that there was material irregularity in publishing and conducting the sale inasmuch as there was no express order of the court on 20-7-56 and 20-8-56, that sales would be conducted on the adjourned dates in default of payment and as such a fresh sale proclamation was necessary; and that no time was fixed in the order dated 21-9-56 as to when the sale was to take place the next day, as a result of which no other bidder participated in the auction.

3. The learned Munsif accepted the petitioners contention that the absence of issue of a fresh sale proclamation and not fixing the hour for sale amounted to material irregularity. As to whether the judgment-debtor had sustained substantial injury by reason of such irregularity, the learned Munsif observed. "The property is in Puri town. There is sufficient reason to believe that some purchasers would have come to offer bid if they had known about the date of sale. It cannot be said how high the bids might have gone if due publicity would have been given to the sale. Hence I find that by such irregularity the judgment-debtor has suffered substantial injury." It was the petitioners case that the building was worth Rs. 50,000/-.

The decree-holders contention had been that the building was an old and dilapidated one and it had fetched in the auction sale its proper price and no finding on this point was recorded by the learned Munsif. An objection had been taken on behalf of the decree-holder before the learned Munsif on the basis of Order 21, Rule 90(1) Proviso (i) (a) (Patna Amendment) that the ground on which the judgment-debtor sought to set aside the sale could have been but was not put forward by him before the sale was concluded, and as such his petition under Order 21, Rule 90, C.P.C. was not maintainable. The learned Munsif rejected this contention observing, "Order No. 45 dated 22-9-56 does not indicate that the parties were called. It also does not indicate at what time the sale was made. The sale being made on the date following the date on which tike judgment-debtor had applied for adjournment, it can not be said that judgment-debtor could point out to th