Judgement Appeal from a judgment and decree of the High Court (June 26, 1906) affirming an order of the Subordinate Judge of Godda (December 20, 1904). The question in the appeal was as to the validity of a sale certificate granted to the respondents Srimohun Marwari and others, as auction purchasers, under the following circum- stances. The appellant Raja Thakur Barmha, since deceased, was the owner of mahal Tappa Patsanda in the Sonthal Pergunnahs. On 30 Sawan, 1302 (August 5, 1895), he mortgaged an 8 annas share of the mahal to Anant Ram Marwari and others. The mortgagees, on September 8, 1902, obtained a decree, and on May 1, 1903, the above appellant mortgaged to them a further 2 annas share of the mahal as a condition to a stay of a sale thereunder. In April, 1902, one Gobardhan Das, in execution of two money decrees, attached the then unincumbered 8 annas share of the mahal, and in November, 1902, a further 3 annas share was mortgaged in his favour. The property was proclaimed for sale upon this attachment on August 29, 1903, being described as the unincumbered 6 annas share of the mahal. An auction took place in November, 1903, but the reserve price not being reached, it was postponed till January, 1904. Meanwhile, on October 23, 1903, the respondents Jiban Ram Marwari and Ishwar Das Marwari obtained a decree against the appellant Raja Thakur Barmha for Rs.42,946, and on October 31, 1903, applied for attachment of certain properties of the judgment debtor. The first item of property attached was described as follows " The defendants zamindari and milkiat rights in the 6 annas out of 16 annas of mahal Tappa Patsanda.....This property is mortgaged in the bond of Anant Ram Marwari and others, decree holders, . . . . and also a 2 annas share of the said mahal, which has been hypothecated as security on behalf of the defendant in the case of execution of a mortgage decree of the said Anant Ram Marwari and others, decree holders, against the judgment debtor, .... in all, 8 annas share of the said mahal . . . ." On the same date an order for attachment of the property so described was made. in all, 8 annas share of the said mahal . . . ." On the same date an order for attachment of the property so described was made. In the receipt of the service of the attachment, the report of the peon, and the sale proclamation the share of the mahal to be sold was again described as included in the above mortgage. The law in force in the Sonthal Pergunnahs requires that the sale should be notified in the Calcutta Gazette. This notification was duly published and stated that the 6 annas share to be sold was not included in the mortgage. The sale took place on July 18, 1904, and succeeding days. In the bid-sheet the share of the mahal to be sold was described as in the attachment. There was added, however, a statement that the 6 annas share was subject, as to 3 annas, to the charge in favour of Gobardhan Das above mentioned. The respondents Srimohun Marwari and others were the purchasers at Rs.l,12,000. In August, 1904, the judgment debtor applied under ss. 311 and 244 of the Code of Civil Procedure, 1882, to set aside the sale, but did not take the objection taken in the present proceedings, and in November, 1904, he withdrew this application. On December 20, 1904, the respondents, the auction purchasers, applied ex parte to the Subordinate Judge for a sale certificate and prayed that the property sold to them should be described therein, not as stated in the attachment, but as a 6 annas share not included in the mortgage to Anant Ram Marwari, but subject as to 3 annas to the charge above referred to. The Subordinate Judge granted a certificate of sale in the form prayed. He was of opinion that the word nahin (not) had been omitted from the notice of attachment and the subsequent documents, but that this was a mere irregularity; that it was clearly the intention of the Court, as all parties knew, to sell a 6 annas share of the mahal not covered by the above mortgage, and that this was in fact the property sold and purchased. The judgment debtor appealed to the High Court and subsequently obtained an order nisi under s. 622 of the Code of Civil Procedure, 1882. The appeal and the rule came on for hearing together before the High Court on March 26, 1906. The judgment debtor appealed to the High Court and subsequently obtained an order nisi under s. 622 of the Code of Civil Procedure, 1882. The appeal and the rule came on for hearing together before the High Court on March 26, 1906. That Court dismissed the appeal and discharged the rule. The learned judges (Brett and Gupta JJ.) were of opinion that the description of the property in the notice of attachment and other documents need not necessarily be restricted to a 6 annas share included in the mortgage. They agreed with the Subordinate Judge that the intention of all parties was that the sale should be of a 6 annas share not included in the mortgage, and that that was what in fact was sold and bought. They thought that the grounds of appeal might have been taken in an application to set aside the sale, but that the judgment debtor, having made and withdrawn an application to set aside the sale, could not upon an appeal from the sale certificate succeed upon the grounds put forward. Dunne, for the appellants. The Subordinate Judge had no jurisdiction to grant a certificate of sale as to any property save that described in the attachment order. The share in the mahal attached and sold was the equity of redemption in a 6 annas share subject to the mortgage of 30 Sawan, 1302. The sale certificate granted should have corresponded in its terms with the description of the property in the attachment and the proclamation of sale. In any case the sale certificate should not have been granted ex parte. De Gruyther, K.C., and Eddis, for the respondents. There are concurrent findings that the property actually sold was a 6 annas share in the mahal not included in the mortgage. The procedure under s. 311 of the Code of Civil Procedure, 1882, which relates to irregularities in publishing and conducting the sale, was the proper procedure open to the execution debtor. He commenced, but abandoned, proceedings under that section. Thereupon, under s. 312, the Court had no discretion but to confirm the sale, and the issue of a certificate of sale under s. 316 was a purely ministerial act and not subject to appeal. He commenced, but abandoned, proceedings under that section. Thereupon, under s. 312, the Court had no discretion but to confirm the sale, and the issue of a certificate of sale under s. 316 was a purely ministerial act and not subject to appeal. The facts in connection with the attachment and other attachments of shares in the mahal clearly shew that all parties treated the subject of the sale as being the 6 annas share of the mahal not included in the mortgage to Anant Ram Marwari. No reply was called for. The judgment of their Lordships was delivered by LORD MOULTON. This is an appeal against a judgment and decree of the High Court of Judicature at Fort William in Bengal, dated June 26, 1906, affirming an order of the Court of the Subordinate Judge of Godda in the Sonthal Pergunnahs, dated December 20, 1904, granting a certain sale certificate to the second set of respondents hereto, described as auction purchasers. The facts of the case so far as is necessary for the decision of this appeal are as follows — On October 23, 1903, the respondents Jiban Ram Marwari and Ishwar Das Marwari (described as the decree holders) obtained judgment against the original appellant Raja Thakur Barmha (now represented by his heirs and legal representatives) for a sum of 42,562 rupees and interest, and on October 31, 1903, the decree holders applied for execution of the decree by attaching and selling the property mentioned in the application. It is only material to refer to the first item in the schedule specifying that property, which reads as follows " The defendants zamindari and milkiat right in the 6 annas out of 16 annas of mahal Tappa Patsanda bearing towzi No. 462 and sudder-jumma of Rs.2,402.9.0 (for the 16 annas) payable in Dumka Collectorate. It is only material to refer to the first item in the schedule specifying that property, which reads as follows " The defendants zamindari and milkiat right in the 6 annas out of 16 annas of mahal Tappa Patsanda bearing towzi No. 462 and sudder-jumma of Rs.2,402.9.0 (for the 16 annas) payable in Dumka Collectorate. This property is mortgaged in the bond of Babu Anant Ram Marwari and others, decree holders, inhabitants of Bazar Shujaganj, in the town of Bhagalpur, and also a 2 annas share of the said mahal, which has been hypothecated as security on behalf of the defendant in the case of execution of a mortgage decree of the said Babu Anant Ram Marwari and others, decree holders, against the judgment debtor, in the First Court of the Subordinate Judge of Bhagalpur, in all, 8 annas share of the said Mahal, together with all rights and interests of the judgment debtor and the Kamat land, nami and benami jalkar, phalkar, bankar, &c, and Kachari House appertaining to the estate. The estimated value is Rs.50,000." In the ordinary course an order was made for the sale of the attached property mentioned in the above schedule by public auction, and proclamation of the sale was made in the required manner. The sale commenced on June 16, 1904, but for a long time the bids were insufficient, and the sale was not finally concluded until July 28, 1904. On December 20, 1904, an application was made on behalf of the auction purchasers to obtain a sale certificate for the 6 annas share of Tappa Patsanda purchased by them at the auction sale. In making this application they alleged that a mistake had been made in the schedule of the property to be sold in that the word "not" had been omitted from the description of the 6 annas in question and that the property should have been described as being 6 annas not mortgaged under the bond of Babu Anant Ram Marwari. At that date 10 annas of the property were so mortgaged while the remaining 6 annas were free from any mortgage. They claimed that their certificate should be made out as being a certificate of the purchase by them of the 6 unincumbered annas instead of (as described in the schedule) 6 annas subject to the existing mortgage. At that date 10 annas of the property were so mortgaged while the remaining 6 annas were free from any mortgage. They claimed that their certificate should be made out as being a certificate of the purchase by them of the 6 unincumbered annas instead of (as described in the schedule) 6 annas subject to the existing mortgage. The Subordinate Judge granted them a certificate in the form which they desired and the High Court sustained his order. It is from this order that the present appeal is brought. Their Lordships are of opinion that this is a very plain case. That which is sold in a judicial sale of this kind can be nothing but the property attached, and that property is conclusively described in and by the schedule to which the attachment refers. In the present case that property was 6 annas subject to an existing mortgage. The effect of the certificate of sale granted by the order of the Subordinate Judge is to mate the sale that of a property not attached, namely, the 6 unincumbered annas—a property which could not be sold in such proceedings inasmuch as it was not the property attached. An attempt was made to treat the matter as a case of misdescription, which could be treated as a mere irregularity. But in this case we have to deal with identity and not description. A property fully identified in the schedule may be in some respects misdescribed, but that is -not the present case. Here we find an existing property accurately described in the schedule, and the order of the Subordinate Judge grants a sale certificate which states that another and a different property has been purchased at the judicial sale. It was beyond the powers of the Court to make such an order, inasmuch as there was no power to sell in these judicial proceedings the property thus certified to have been purchased. Counsel for the respondents sought to support his case by referring to documents in other judicial proceedings tending to support the view that a mistake had been made in drawing up the schedule, and that the property intended to be inserted therein was the unincumbered 6 annas. Their Lordships are of opinion that all such matters are irrelevant. Counsel for the respondents sought to support his case by referring to documents in other judicial proceedings tending to support the view that a mistake had been made in drawing up the schedule, and that the property intended to be inserted therein was the unincumbered 6 annas. Their Lordships are of opinion that all such matters are irrelevant. If by a mistake the wrong property was attached and an order made to sell it, the only Course open to the decree holders on the discovery of the mistake was to commence the proceedings over again. They could not turn an authority to sell one property into an autho rity to sell another and a different one. Moreover it is impossible to attribute to the public to whom the attached property is offered in sale a knowledge of proceedings in other suits which might have led them to suspect that an error had been made. The only relevant document brought to their Lordships notice in this respect was an advertisement in the Calcutta Gazette which, though purporting to be a description of the attached property, differed from the description in the schedule by representing that the property to be sold was free from the mortgage. This want of correspondence between the advertisement in the Calcutta Gazette and the schedule of the attached property in the proclamation of sale constitutes an additional irregularity which it might need the assistance of the Court to cure if the sale were regular in other respects, but it cannot validate a sale of property which was not the property to which the attachment related. Their Lordships therefore will humbly advise His Majesty that this appeal should be allowed, and that the order of the Subordinate Judge confirming the sale, together with the certificate granted thereunder dated December 20, 1904, should be set aside. This will, of course, have the effect of setting aside all subsequent proceedings on the part of the auction purchasers based thereon. The respondents will pay the costs of the application to the Subordinate Judge of December 20, 1904, and of the appeal to the High Court of Judicature at Fort William in Bengal, and also the costs of this appeal.