JUDGMENT 1. On the 17th January 1905 in execution of a decree obtained by one of the Respondents against the Appellants 70 parcels of immoveable property were sold at auction. Some were purchased by the decree-holders; others by strangers who are, however, alleged by the Appellants to be boarders for the decree-holder themselves. On the 15th February 1905 an application was presented by the Appellants, judgment-debtors, to the Subordinate Judge of Patna for reversal of the sale. It was alleged that the sale-proclamation and writ of attachment had not been served, that the whole of the proceedings had been vitiated by fraud and that the properties which were valued in the sale-proclamation at very much lower than their real prices, had been sold to the substantial loss of the Petitioners. Notice of the application was Served upon the decree-holders and auction-purchasers and the case came on for hearing on the 15th April 1905. The first witness on behalf of the applicants went into the witness-box and a question was put to him in examination-in-chief as to whether the decree-holders had published any writ of attachment or proclamation of sale in his presence. The Subordinate Judge disallowed the question on the ground that " the judgment-debtors had waived their right to object to any irregularity, etc., regarding the publication of sale, &c." The case was then postponed and taken up again on the 29th April following, when the witness who had been examined on the previous occasion was recalled. Certain questions relating to the publication of the writ of attachment and the proclamation of sale were put to the witness. What these questions were cannot be ascertained from the record; but it is stated in the order of the Subordinate Judge that he declined to permit such questions to be put as he had ruled on the previous occasion that " the Petitioners had already waived their right to question the irregularity, &c, as to the publication of the proclamation of sale, &c." The pleader for the applicants thereupon declined to examine the witness. Another witness was then put into the witness-box; but it is not clear as to what precisely happened with regard to him. We find, however, that the pleader for the Petitioner retired from the case and the Subordinate Judge dismissed the application. Another witness was then put into the witness-box; but it is not clear as to what precisely happened with regard to him. We find, however, that the pleader for the Petitioner retired from the case and the Subordinate Judge dismissed the application. The Petitioners have now appealed to this Court and On their behalf the order of the Subordinate Judge has been challenged substantially on the grounds that there has been no fair trial of the case in the Court below, that the Subordinate Judge has erred in supposing that there was any waiver of the right of the Petitioners to object to any irregularity, &c., regarding the publication of the sale and that in any event the charge of fraud alleged in the application ought to have been investigated. Upon an examination of the whole record and after a careful consideration of the arguments addressed to us on both sides, we are satisfied that the contention advanced on behalf of the Appellants must prevail. It appears that the proceedings, in the course of which the sale impeached by the Appellants took place, were commenced on the 31st May 1904, by the presentation of an application for execution by the decree-holders. The sale-proclamation was ordered to be issued and the 18th July 1904 was fixed for sale. On that date the judgment-debtors made an application for adjournment for one week upon condition that they would raise no objection on the ground of irregularity, &c, in the sale. The Court granted this application and directed the sale to take place on the 26th July. On that date the judgment-debtors paid to the decree-holders Rs. 400 and prayed that one month's time might be granted to them for the payment of the balance of the decrial money allowing the attachment and the sale-proclamation to subsist. The petition further contained a statement that there was no necessity for a fresh sale-proclamation in the mofussil, that it might be posted up on some conspicuous place in the Court and that the judgment debtors would have no objection to the sale on the ground of irregularity and inadequacy of price, &c. With the consent of the decree-holders this application was granted and the sale was directed to take place on the 15th August following. On that date again, the judgment-debtors applied for time for one month and they agreed that there was no necessity for a fresh sale-proclamation in the mofussil which might be posted up at some conspicuous place in the Court; they further undertook not to raise any objection on the ground of irregularities in the sale and of inadequacy of price, &c. This petition also was allowed and the sale was ordered to take place on the 19th September following. On the 19th September the judgment-debtors again prayed that the sale might be postponed to November and. repeated their assurance that there was no necessity for a fresh sale-proclamation in the mofussil and that, in the event of sale, they would raise no objection on the ground of irregularities in the sale or of inadequacy of price & at the same time they paid Rs. 100 to the decree-holders and the sale was put off to the 28th November. On the 28th November the judgment-debtors again applied for postponement of the sale to December and stated in their application that it was not necessary to send the sale-proclamation to the mofussil, which might be posted up on a conspicuous place in the Court; they also undertook not to take any objection in the event of sale on the ground of irregularity, &c. The sale was accordingly adjourned to the 19th December. On the 19th December the judgment-debtors applied for time for five days and repeated their assurance that a fresh sale-proclamation was not necessary and that they would raise no objection on the ground of irregularities and of inadequacy of price. Thereupon the sale was directed to take place on the 23rd December. On that date, the judgment-debtors again prayed for postponement of the sale till the 16th January 1905. They further agreed that the sale-proclamation should not be issued afresh and that they would take no objection on the ground of irregularities in the sale and of the inadequacy of price, &c. This application was rejected and the sale began on the same day but was not concluded. When the Courts reopened after the X'mas holidays, the sale was continued. When the Courts reopened after the X'mas holidays, the sale was continued. On the 3rd January 1905, however, the judgment-debtors applied again for adjournment of the sale; they alleged that negotiations for sale of the properties out of Court had made considerable progress but could not be completed on account of the holidays. On this ground they prayed that the sale might be fixed for the 16th January, the attachment and sale-proclamation to remain in force; they also repeated their offer not to ask for the issue of a fresh sale-proclamation, nor, in the event of the sale, to raise any objection on the ground of irregularities in the sale and of inadequacy of price, &c. The decree-holders opposed this application although the Petitioners deposited Rs. 800 in part payment of the judgment-debt. The Court, however, directed the sale to be stayed until the 16th January next on which day the sale was to take place at noon in case the judgment-debtors did not pay the decrial amount in full; the Subordinate Judge also recorded that no fresh proclamation of sale would issue as the judgment-debtors had waived their right to the issue of such proclamation. On the 16th January 1905 the judgment-debtors presented another application for adjournment of the sale, in this they alleged that the previous applications had been made without their authority by their servants in collusion with the decree-holders and that they had since discovered that the attachment process and the sale-proclamation had been suppressed fraudulently. This application was refused and the sale was completed. The validity of the sale was challenged in the Court below broadly on the ground of fraud, which, according to the judgment-debtors, they had not discovered till the 16th January 1905. They further alleged, first, that the writ of attachment and sale-proclamation had been suppressed, secondly, that the return of service was entirely fictitious, and, thirdly, that the properties which yielded an annual profit of at least its 40,000 had been sold for a very small price. Under these circumstances" the question arises whether there has been any waiver of their rights by the judgment-debtors and, if so, to what extent? 2. Under these circumstances" the question arises whether there has been any waiver of their rights by the judgment-debtors and, if so, to what extent? 2. Reliance was placed by the learned Counsel for the decree-holders and auction-purchasers upon the cases of Raja Thakur Barham v. Ananta Ram Marwnari 2 C.L.J. 584 (1905)., Noorul Hossein v. Omatul Fatima 25 W. K. 34 (1875) and Girdhari Singh v. Hurdeo Narain L. R. 3 I. A. 230 (1876) to establish that the judgment-debtors had waived all their rights to question the validity of the sale and an endeavor was made to show that the terms of the petitions in the case before us are closely similar to the petitions which had been filed on behalf of the judgment-debtors in the cases to which reference was made. It was contended on the other hand by the learned vakil for the judgment-debtors Appellants that whether there has been a waiver or not must depend upon the circumstances of every individual case, that no useful purpose is likely to be served by reference to the petitions in other cases framed in similar terms, that there has been no waiver in the present case of the right of the judgment-debtors to question the validity of the sale on the ground of fraud and that if the language of the petitions is construed as wide enough to imply a waiver of the right of the judgment-debtors to impeach the validity of the sale upon any ground whatsoever, such a waiver is contrary to public policy and will not be enforced by any Court of 'justice. In support of this argument reliance was placed upon the case of Preo Lal pal v. Radhica Prosad Pal 6 C. W. N. 42 (1901). 3. In order to determine which of these contentions ought to prevail, it is desirable to refer for a moment to the principles applicable to cases of this description which appear to us to be fairly well-settled. A waiver is an intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right; a waiver, therefore, strictly so-called, is the result of an intentional relinquishment of a known right. A waiver is an intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right; a waiver, therefore, strictly so-called, is the result of an intentional relinquishment of a known right. It follows consequently that there can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts which would enable him to take an effectual action for the enforcement of such rights. No one can acquiesce in a wrong while ignorant that it as been committed and that the effect of his action will be to confirm it. This principle is based upon perfectly intelligible grounds and is supported by cases of the highest authority [Blennerhassett 6 C. W. N. 42 (1901) v. Day 2 Ball and Beatty 104, 128 (1812)., Darnley v. London C. & D. By. L. R H.2 L. 43 (1867)., Beauchamp v. Winn L. R. 6 H. L. 223 (1873)., Austin v. Chambers 6 CI. and F. 1 (1838) and La Banque v. La Banque 13 Appeal Cases 111 (1887)] It is, therefore, a contradiction in terms to say that a judgment-debtor has waived his right to impeach the validity of a sale on the ground of fraud when his very objection is that he was unaware that his rights had been affected by fraud. The burden of proof of knowledge is on one who relies upon a waiver and such knowledge must be plainly made to appear. A presumption of waiver cannot be rested on a presumption that the right alleged to have been waived was known. It follows consequently that in the case before us there was no waiver of the right of the judgment-debtors to question the validity of the sale on the ground of the alleged fraud: and upon this point we agree entirely with the rule laid down by this Court in the case of Preo Lal Pal v. Radhica Prasad Pal 6 C. W. N. 42 (1901). 4. Whether there has been a waiver or not of the rights of the judgment-debtors and if so, to what extent, must depend upon the circumstances of each individual case. The existence of an intent to waive is a question of fact and the best evidence of intention is to be found in the language and conduct of the parties. 4. Whether there has been a waiver or not of the rights of the judgment-debtors and if so, to what extent, must depend upon the circumstances of each individual case. The existence of an intent to waive is a question of fact and the best evidence of intention is to be found in the language and conduct of the parties. No doubt, a waiver may consist of, and be proved by, an express promise or agreement declaring a purpose not to enforce a particular right; but it may also be inferred from the conduct of the parties. Whether there has been a waiver or not, is therefore a mixed question of fact and law. Whether certain alleged circumstances from which a waiver is inferred exist or not, may be a question of fact; whether, when the existence of such circumstances has been established, they are sufficient to justify an inference of a waiver, is a question of law. But in all questions of this sort, so much depends on the intent with which parties act, on their conduct and their language that it would be impossible for Courts to establish any stereotyped and inelastic rule by which all cases may be governed. It is fruitless therefore to compare the language of the petitions before us with the language of the petitions filed by other judgment-debtors in other cases to be found in the books. As was observed by Sir George Jessel in Aspden v. Seddon L. R. 10 Ch. App. 394 (1875).. In re New Callao 22 Oh. Div. 484 (1882). and Hack v. London Provident Building Society 23 Ch. Div. 103 (1883), nothing is better settled than that the construction put upon an instrument by a Court of Law or Equity is not binding upon another Court as regards the construction of another instrument couched is somewhat similar language. These observations are applicable with much greater force to cases of the description now before us where the question of waiver has to be determined not merely upon the language of the particular petitions but with regard to the whole of the proceedings in the case and particularly with reference to the order made by the Court upon the petition Raja Thakur Barham v. Ananta Ram Marwori 2 C. L. J. 584 (1905). No doubt, if any general principles are deducible from the cases decided by their Lordships of the Judical Committee, namely, Girdhari Singh v. Hurdeo Narain Singh L. R. 8 I. A. 280 (1876) and Arunachellam v. Arunuchellam L. E. 15 I. A. 171 (1888), they are binding upon this Court; but the principles have to be applied to the particular facts and circumstances of the case before the Court. Now so far as the present case is concerned, the application of the 3rd January 1905 upon which reliance is principally placed on behalf of the decree-holders and auction-purchasers it is to be noticed that its terms were not accepted by the decree-holders. Indeed, they resisted the application and never withdrew from their opposition. It is next to be noticed that the Court, when it granted the application, made an order by which it directed that no fresh sale-proclamation would issue as the judgment-debtors had waived their right to the issue of such proclamation. The only part of the offer of the judgment-debtors which was therefore accepted and acted upon by the Court was the offer to waive their right to the issue of a fresh proclamation of sale if, therefore, in determining the question of waiver we guide ourselves by the rule laid down in Raja Thakur Barham v. Ananta Hum Marwari 2 C. L. J. 584 (1905)., upon which the learned Counsel for the Respondents strenuously relied, it follows, that there has been a waiver by the judgment-debtors only of their right to insist upon the issue of a fresh proclamation of sale. The judgment-debtors are consequently not precluded from questioning the validity of the sale on the ground that the writ of attachment and the previous proclamation of sale which were alleged by, the decree-holders to have been regularly issued and properly served, had been fraudulently suppressed at their instance. 5. We may further point out that if all the applications presented on behalf of the judgment-debtors are strictly construed, they show at most that the judgment-debtors waived their right to take objection on the ground of irregularities in the sale. The language used in the various petitions makes it quite clear to our minds that a distinction was made between irregularities in the sale and the issue of a fresh proclamation of sale. The language used in the various petitions makes it quite clear to our minds that a distinction was made between irregularities in the sale and the issue of a fresh proclamation of sale. It cannot, therefore, be rightly suggested that the judgment-debtors waived their right to question the propriety of the sale on the ground that the sale-proclamation had never been issued at all. It may further be observed that although the judgment-debtors waived their right to call in question the validity of the sale on the ground of inadequacy of price, they did not waive their right if such inadequacy could be traced to the fraud of the decree-holders. On these grounds, we must hold that the judgment-debtors did not waive all their rights to impeach the validity of the sale. 6. It was faintly suggested by the learned Counsel for the Respondents that the language used in the petitions, that is, the use of an " etc.," was comprehensive enough to include all possible grounds upon which the validity of the sale could be challenged. We are not prepared to adopt the construction suggested on behalf of the Respondents. It was argued on the other hand by the learned vakil for the Appellants that, even if the construction had been admissible, a waiver of this description was against public policy and would not be enforced by any Court of justice. In our opinion there is considerable force in this contention. It is beyond the domain of controversy that the right of waiver is subject to the control of public policy which cannot be contravened by any conduct or agreement of the parties, and agreements which seek to waive an illegality may be void on grounds of public policy or morality. This is amply supported by the decision of their Lordships of the Judicial Committee in La Banque v. La Bunque 13 Appeal Cases 111 (1887).. The same doctrine, enunciated concisely and pointedly by Mr. Justice Swayne in Hall v. Gapell 7 Wallace 542, was adopted by Mr. Justice Field in Oscanyan v. Winchester 13 Otto. 261., where that learned Judge observes as follows with reference to the contention that a waiver is always enforceable. " This contention is founded upon a misconception of the law. In such a case (that is, where the waiver of. an illegality is sought to be enforced) there can be no waiver. Justice Field in Oscanyan v. Winchester 13 Otto. 261., where that learned Judge observes as follows with reference to the contention that a waiver is always enforceable. " This contention is founded upon a misconception of the law. In such a case (that is, where the waiver of. an illegality is sought to be enforced) there can be no waiver. The defense is allowed not for the sake of the Defendant but of the law itself. The principle is indispensable to the purity of its administration, it will not enforce what it has forbidden and denounced. The maxim ex dola mala nonaritur actio is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Whenever an illegality appears, whether from the evidence given by one side or the other, the disclosure is fatal to the case. A stipulation of the strongest form to waive the objection would be tainted with the vice of the original contract and void for the same reasons. Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded upon its violation." It is quite conceivable, therefore, that a Court of justice may refuse to enforce the plea of waiver when it is satisfied that the waiver is of all the rights of a person to seek the protection of a Court of justice against fraud upon the process of the Court itself. It is not necessary, however, to deal with this matter at length; because, as we have already stated, we are satisfied that there has been no such waiver on the part of the Appellants as would preclude them from challenging the validity of the sale on the ground of fraud and from demanding an enquiry into all the antecedent circumstances which would throw height upon the question of fraud. As regards the case of Raja Thakur Barham v. Ananta Ram Marwari 2 C. L. J. 584 (1905)., it cannot be assumed that it lays down any general rule of universal application; but it only applies well established principles to circumstances of the particular case then before the Court. As regards the case of Raja Thakur Barham v. Ananta Ram Marwari 2 C. L. J. 584 (1905)., it cannot be assumed that it lays down any general rule of universal application; but it only applies well established principles to circumstances of the particular case then before the Court. As regards the case of preo Lal Pal v. Badhica Prasad Pal 6 C. W. N. 42 (1901)., in to far as it laid down that there was no waiver of any fraud practised on the judgment-debtor who was consequently not precluded from seeking to set aside the sale on that ground we are entirely in accord with the opinion then expressed by the Court. As regards the other portion of the judgment which deals with the waiver of irregularities it may perhaps be difficult to reconcile that case with the earlier decisions of the Judical Committee to which we have referred; but it is not necessary for us be express any opinion upon that question. The case does not lay down any inflexible rule of law applicable to all circumstances. The result, therefore, is that this appeal must be allowed, the decision, of the Subordinate Judge reversed and the case remitted to him so that he may take the evidence and determine the validity of the grounds upon which the sale is challenged. The Appellants are entitled to their costs in this Court. We assess the hearing fee at five gold mohurs. Costs in the Court below will abide the ultimate result.