Wanchoo, C. J. - (1.) THIS is an appeal by Jai Chand Lal and others against the order of the District Judge, Churu, under Order XXI, Rule 90, of the Code of Civil Procedure.
(2.) THE facts, which have led to this appeal, are these. A mortgage decree was passed in favour of Manak Chand, respondent decree-holder, on the 19th of June, 1948. It was put in execution on the 14th of August, 1948. THE property was ordered to be sold from the 25th to the 27th of March, 1949. THE auction was held on these dates, and the highest bid by the decree-holder-respondent on the 27th of March was Rs. 25,000/ -. 8th of April, 1949, was fixed for accepting the bid but actually the Court accepted the bid on the 21st of April, 1949. THEreafter an application was made by the judgment-debtor-appellants on the 14th of May, 1949, under Order XXI, Rule 90, of the Code of Civil Procedure, for setting aside the sale on the ground of fraud and material irregularity in publishing and conducting the sale. This application was dismissed by the execution Court. Hence this appeal. Three points have been urged before us by the learned counsel for the appellants, and we shall take them one by one. Firstly, it was urged that there was fraud in conducting the sale inasmuch as the decree-holder had agreed with the judgment-debtors on the 26th of March, 1949, to get the sale postponed, because the judgment-debtors had paid a sum of, Rs. 10,000/- to the decree-holder on that day. It is admitted on behalf of the decree-holder that Rs. 10,000/-were paid to him on the 26th of March, 1949. The decree-holder, however, denies that he agreed to have the sale postponed in order that the judgment-debtors might apply to the Court for time to transfer the property privately, and arrange for payment of the money within six weeks or two months of the 27th of March. No evidence was produced on either side on this question of fact. There was only an affidavit on behalf of the judgment-debtors alleging that such an agreement had been arrived at between the parties. There was not even a counter-affidavit on behalf of the decree-holder to traverse the allegations made in the affidavit of the judgment-debtors. It has been urged, therefore, on behalf of the appellants that this affidavit of the judgment-debtors should be accepted, particularly as it stands to reason that the judgment-debtors would not have paid a sum of Rs. 10,000/- on the 26th of March, if the decree-holder was not willing to allow them time for payment of the balance so that the other property of the judgment-debtors might be saved. There is, in our opinion, a good deal of force in this argument; but there is one circumstance which has led us to doubt whether there was any such agreement. An application was made on behalf of the judgment-debtors on the 8th of April, I949, asking the Court not to accept the final bid which had been made on the 27th of March. In that application the judgment-debtors, after reciting that the sale proclamation had not been proclaimed by beat of drum, went on to say that they had paid Rs. 10,000/- to the decree-holder, and were trying to pay up the balance and prayed for time under Order XXI, Rule 83, of the Code of Civil Procedure. It seems to us that the judgment-debtors should have mentioned in this application that the decree-holder had also agreed on the 26th of March, when he took Rs. 10,000/- from them, to give them time for 6 weeks or two months. The failure of the judgment-debtors to mention this very important fact in their application of 8th April makes us doubt very much, in spite of the considerations which we have set out already, whether this agreement was arrived at. We are not prepared to hold, in the face of the failure of the judgment-debtors to mention this fact in the application of the 8th April, that any such agreement was arrived at. We now [turn to the second point urged on behalf of the appellants. It is that there was no publication, by beat of drum or any other customary mode, of this sale in Sardarsahar where the property was auctioned. The manner in which a sale proclamation is to fee proclaimed is laid down in Order XXI, Rule 54 (2 ). Under that provision, where the property is immovable, the sale proclamation is to be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the proclamation is to be affixed on a conspicuous part of the property and upon a conspicuous part of court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the District in which the property is situate. It is not in dispute that the sale proclamation was not proclaimed by beat of drum or other customary mode in Sardarsahar where the auction took place. The point was disposed of by the lower Court by saying that the practice in Bikaner State was that the sale proclamation was affixed in the court-house and on the property. Now these two things have got to be done, and the proclamation by beat of drum is in addition to these two things. The reason why the law prescribes that the sale proclamation should be proclaimed by beat of drum on or adjacent to the property is that the intending purchasers living in that locality should have notice that the sale would take place on such date so that bidders may turn up and bid for the property. Where a Court fails to have such a proclamation made, there is no doubt in our mind that it is a material irregularity in publishing the same. No amount of practice can override the law, and the Court below was not right in brushing aside this contention of the appellants. The next question then is whether there was any substantial injury sustained by the judgment-debtors by reason of the failure to proclaim the sale as above. It has been urged on behalf of the decree-holder that inasmuch as this house and another property were also put up for sale on the 27th, 28th and 29th December, 1948 the people in Sardarsahar must have had knowledge of the sale proceedings, and we should not; therefore, infer that a large number of bidders could not turn up because of the failure to proclaim the sale properly. We have no evidence, one way or the other, whether a large number of bidders had turned up when the sale took place in March, 1949. All we know from the list of bidders is that there were four bidders, including the decree-holder, who bid for this property during these three days. The mere fact that this property and another one were put up for sale in December, 1948, does not necessarily mean that the people of Sardarsahar had knowledge about the sale, which was to be held from the 25th of March, to the 27th of March, 1949. We are therefore, of opinion that the non-publishing of the sale by beat of drum or any other mode customary in Sardarsahar must have resulted in people not knowing that this property was going to be sold on those dates in March. The only question that remains is whether the price fetched, viz. , Rs. 25,000/- was an inadequate price, and, therefore, there was a material injury to the judgment-debtors. On that point we have an affidavit on behalf of the judgment-debtors that the property is worth Rs. 70,000/- or Rs. 80,000/ -. There is no counter-affidavit on behalf of the decree-holder to controvert this. It is true that at an earlier stage, when the proclamation was being prepared, the decree-holder said in an application that the property was worth Rs. 20,000/. But that statement can have no value, firstly, because it was not accepted by the court and the price was not put down in the sale proclamation, and, secondly, because the later statement of the judgment-debtors in an affidavit has obviously much more value than a statement in an application by the decree-holder without his swearing to that. We must, on the facts before us, come to the conclusion that the property was worth much more than Rs. 25,000/- and its sale for Rs. 25,000/- resulted in substantial injury to the judgment-debtors. As this inadequacy of price must, in our opinion, have been, occasioned by the failure to proclaim the sale, the sale must be set aside as prayed by the judgment-debtors. The third point that has been raised on behalf of the judgment-debtors is that no estimated price was mentioned in the sale proclamation. In this connection reliance is placed on Order XXI, "rule 65 (2) (e), of the Code of Civil Procedure. Under that clause it is the duty of the court to mention every other thing which the court considers material for a purchaser to know in order to judge of the nature and value of the property. Learned counsel for the appellants contends that in order that intending bidders may know of the value of the property, it is the duty of the court to mention the estimated price in the sale proclamation. In this case, the court neither mentioned the estimated price of the property nor gave any other circumstance in the sale proclamation, which could enable the intending purchasers to judge of the value of the property themselves. There is a difference of opinion between various High Courts on the question whether the court should mention the estimated value of the property in the sale proclamation. The Madras and Allahabad High Courts have held that the court is under no such obligation, vide Thiru-vengadaswamy Iyengar vs. Govinda-swami Udayar and others (A. I. R. 1928 Madras 503), and Md. Said Khan vs. Md. Abdus Sand Khan and another (A. I. R. 1932 Allahabad 664 ). On the other hand, the High Courts of Patna, Calcutta, and Rangoon were of the view that it was the duty of the court to enter in the sale proclamation its own estimate of the value of the property, vide Raghunath Singh vs. Hazari Sahu and others (A. I. R. 1917 Patna 381 (F. B.)], Pashupati Nath Maliah and another vs. Bank of Bihar (A. I R. 1932 Calcutta 141), and L. A. R. Lutchumanan Chettyar vs. Haji Ismail Noor Mohamed and others (A. I. R. 1937 Rangoon 157 ). The view of the Bombay High Court seems to be doubtful, because in one case it held that it was not necessary in every case to value the property to be sold, vide Charandas Vasanji and another vs. Dossabhou Maganlal and others (A. I. R. 1939 Bombay 182), while in another, it was held by the same Court that the court was bound to hold an inquiry as to the value of the property, and state the value in the sale proclamation, vide Sitabai Rambhau Marathe vs. Gangadhar Dhanram Marwadi and another (A. I. R. 1935 Bombay 331 ). Learned counsel for the appellants relied on 25 Indian Appeals, page 146 (Saadalmand Khan vs. Phul Kuwar ). In that case what had happened was that the estimated price had been mentioned in the sale proclamation, but it was much less than the real price. It was then held by their Lordships of the Privy Council that "a material misrepresentation (though made gratuitously by the decree-holder and the Court) of the value of property contained in a proclamation of sale under s. 287 of the Civil Procedure Code is a material irregularity in publishing or conducting a sale in execution within the special remedy provided by s. 311 for setting such sale aside. " Learned counsel relies on the observations on page 150. After stating that the Munsif's reasoning that as no rule required that the value of the property should be mentioned in the proclamation and the entry being uncalled for and not legally obligatory, to give a wrong value was no ground for setting aside the sale, was faulty, their Lordships went on to observe as follows: - "it is true, as before observed, that the misstatement is something more grave than an ordinary irregularity of procedure, but the fact that it is so, and that it was made gratuitously by the decree-holder and the Court, does not prevent it from being 'a material irregularity in publishing or conducting' the sale, such as to bring the case within the special remedy provided by s. 311. Whatever material fact is stated in the proclamation (and the value of the property is a very material fact) must be considered as one of those things 'which the Court considers material for the purchaser to know', and it is enacted in terms (though express enactment is hardly necessary for such an object) that those things shall be stated as fairly and accurately as possible. " Learned counsel deduces from these words that the value of the property being a very material fact should be mentioned always in the sale proclamation in view of Order XXI, Rule 66 (2) (e ). It must, however, be observed that their Lordships did not lay down in this case in so many words that the estimated value of the property must always be mentioned in the sale proclamation. It is a well-established principle that the words used in a judgment should be interpreted with reference to the facts of that judgment, and, therefore, we do not think that this case is a direct authority on the point. At the same time, there is no doubt that the court should provide such particulars as may be material for a purchaser to know in order to judge of the value of the property. Where the court can get at the estimated price without much difficulty, e. g. , when the parties are agreed as to the price of the property, it should give that price in the sale proclamation. Where it may not be possible to arrive at the estimated price without difficulty, and the parties may not be agreed upon one price, it seems to us that it is still the duty of the court to give such other particulars as may be available to enable the intending purchaser to judge of the value of the property. Without exhaustively enumerating these particulars, we may mention such matters, for example, the annual or monthly rent of the property, where it is known, the house-tax or water-tax, where the property is a municipality, and such taxes are levied, the fact that the property is subject to litigation, the fact that among Muslims a widow has a right to possession or property for dower debt, the fact that the property is under another attachment, and so on. In this case the court has given no particulars whatsoever, which would help an intending purchaser in judging of the nature and value of the property, and in so far as it failed to give any material on this point, we think that there was a material irregularity in the publishing and conducting of the sale. This may also have, in our opinion, affected the bids that were made on the 25th, 26th and 27th of March, 1949. But this aspect of the matter does not require further consideration, because we have already held, while dealing with the question of proclamation by beat of drum, that there was substantial injury to the judgment-debtors in this case. We, therefore, allow this appeal, set aside the sale, and send the case back for further proceedings according to law. The judgment-debtors will get costs of this Court from the decree-holder. . ;