Judgement Appeal (No. 63 of 1943) from a judgment and order of the High Court (September 24, 1941) which modified a judgment and order of the Subordinate Judge of Mayavaram (February 15, 1939). The following facts are taken from the judgment of the Judicial Committee—The question in this appeal was whether a sale of immovable property, including land in the village of Tiruvali, made in Law. Rep. 72 Ind. App. 104 ( 1944- 1945) Marudanayagam Pillai V. Manickavasakam Chettiar 153 execution of a mortgage decree obtained by the respondent against the appellants predecessor, was bad as regards the said land and should be so far set aside under Ord. XXI., r. 90, of the Code of Civil Procedure, on the ground of material irregularity and fraud in publishing and conducting the sale. The mortgage was executed on January 26, 1925, by one Srirangathammal in respect of land in three villages, including that of Tiruvali, to secure the repayment within one year of Rs.36,000, with interest at the rate of fifteen per cent. per annum. The mortgagor was the widow of the last male proprietor of the estate, holding therein the limited interest of a Hindu widow, and the appellant was the next presumptive reversioner. So far as regards the land in the village of Tiruvali and certain other lands, the mortgage was expressed to be made subject to a prior mortgage (hereinafter referred to as the "prior mortgage") dated November 16, 1924, by the same mortgagor in favour of third parties, to secure repayment of Rs.44,500 and interest. The prior mortgage included lands not covered by the respondents mortgage. In 1929, the mortgagees instituted a suit on the prior mortgage before the Subordinate judge of Mayavaram, joining the respondent as puisne mortgagee, and on August 12, 1929, obtained a decree for Rs.79,238.2.6, with a direction for sale if the moneys were not paid by February 12, 1930. In 1930, the respondent instituted a suit before the same Subordinate Judge on his mortgage, and on October 7, 1930, obtained a preliminary decree for Rs.66,778.11.9, and on July 27 1931, a final decree. In 1930, the respondent instituted a suit before the same Subordinate Judge on his mortgage, and on October 7, 1930, obtained a preliminary decree for Rs.66,778.11.9, and on July 27 1931, a final decree. In 1931, in a suit instituted by the appellant, as next reversioner, against the said Srirangathammal for an injunction to restrain her from committing waste, a receiver was appointed for the estate, and on April 7, 1931, he was added as a defendant in the suit on the prior mortgage, and on July 27 he was added as a defendant in the suit on the respondents mortgage. On December 15, 1931, the respondent applied, under r. 66, sub-r. 2, of Ord. XXI., of the Code of Civil Procedure (By Ord. XXI., r. 66, of the Code of Civil Procedure — "(1.) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. "(2.) Such proclamation shall be drawn up after notice to the decree-holder and the-judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible—(a) the property to be sold; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to k now in order to judge of the nature and value of the property. "(3.) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are k nown to or can be ascertained by the person mak ing the verification, the matters required by sub-rule (2) to be specified in the proclamation. "(4.) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it think s necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.") for execution of his decree, and he annexed to his application a draft proclamation which directed that the sale should be subject to the mortgage decree obtained on the prior mortgage, and contained this state ment—" A low valuation is made as there is a prior charge of about Rs.80,000, according to the said decree in respect of the aforesaid properties." The value put on the properties by the respondent amounted to Rs.7,317. In May, 1932, Srirangathammal died, Law. Rep. 72 Ind. App. 104 ( 1944- 1945) Marudanayagam Pillai V. Manickavasakam Chettiar 154 and the appellant was added as a defendant in the respondents suit, the receiver having been previously discharged. On September 13, 1932, the appellant, by his pleader, adopted the answer which had been put in by the receiver in the respondents suit and which had challenged the respondents draft proclamation, and the appellant agreed to put in a draft sale proclamation in the way in which he would have it, and the matter was then adjourned until October 6, 1932. On October 6, the appellants pleader asked for an adjournment, and, on its refusal, stated that he had no instructions to proceed with the matter. No draft proclamation was put in by the appellant, and the court thereupon approved the draft proclamation put in by the respondent, and adopted the respondents valuation as the upset price. On November 2, the court directed that the sale should take place on December 19. On October 25, 1932, the appellant had made an application alleging that the widow mortgagor had no power to bind the reversion, and that accordingly the decree for sale on the respondents mortgage could not affect the interest of the appellant, and on December 16, the appellant applied for an adjournment of the sale until this point had been determined. The Subordinate Judge thereupon adjourned the sale to January 23, 1933, the appellant waiving a fresh proclamation. In the absence of such waiver the appellant would have been entitled to insist on a fresh proclamation under r. 69 of Ord. XXI. The Subordinate Judge thereupon adjourned the sale to January 23, 1933, the appellant waiving a fresh proclamation. In the absence of such waiver the appellant would have been entitled to insist on a fresh proclamation under r. 69 of Ord. XXI. Further adjournments were obtained at the instance of the appellant, who on each occasion waived a fresh proclamation, and the sale ultimately took place on March 28, 1933. At the sale the respondent, the decree-holder, who had obtained leave to bid under r. 72, Ord. XXI., was the only bidder, and he purchased at Rs.16 above the upset price. From the judgment of the learned Subordinate Judge, it appeared that after the sale the prior mortgagee sold certain land subject to the respondents mortgage for some Rs. 10,000, and that the respondent paid to him a further sum of Rs.1,000 balance due on the prior mortgage. In the result the respondent acquired free from incumbrances and at a price rather less than Rs.20,000 property which he had valued at Rs.7,317 subject to a mortgage for Rs.80,000. The position under the prior mortgage appeared from exhibit M.M., which was the suit register in the Subordinate Court of Mayavaram of the prior mortgage suit. It appeared that in January, 1931, the receiver paid into court Rs.3,000, and in September a further Rs.20,000, and those sums had been paid out to the decree-holder before December, 1931. In June, 1932, sales were effected in the prior mortgage suit, and sums amounting to Rs.30,444 were paid into court, and those sums were paid out to the decree-holder in July and August, 1932. In November and December, 1932, there were further sales for sums amounting approximately to Rs. 16,000, and that sum was paid out to the decree-holder by March 4, 1933. The position, therefore, was that at the time when the draft proclamation was submitted by the respondent the sum of approximately Rs.80,000 mentioned therein as due on the prior mortgage (which was correct as the sum originally due) had been reduced by a sum of Rs.23,000. At th date when the proclamation was approved, namely, October 6, 1932, the sum had been reduced by a further Rs.30,444; and at the date of the sale the sum had been reduced by a further Rs.16,000, making a total deduction of Rs.69,444. On June 19, 1933, the appellant applied under r. 90 of Ord. At th date when the proclamation was approved, namely, October 6, 1932, the sum had been reduced by a further Rs.30,444; and at the date of the sale the sum had been reduced by a further Rs.16,000, making a total deduction of Rs.69,444. On June 19, 1933, the appellant applied under r. 90 of Ord. XXI to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. The learned Sub ordinate Judge came to the conclusion that the sum of Rs.80,000 mentioned in the proclamation as the amount due on the prior mortgage was wrong at the respective dates of presenting and settling the proclamation., and of the sale for the reasons hereinbefore stated, and that had the court known the facts the upset price would have been fixed at a much higher figure, and that the appellant had been seriously prejudiced by the mistake in the proclamation. He stated that he was not prepared to hold that the respondent had been guilty of fraud in misstating the amount due on the prior mortgage, though he considered the case to be one of grave suspicion. He held further that there was nothing to show that the appellant was aware of the payments into court in the prior mortgage suit. Law. Rep. 72 Ind. App. 104 ( 1944- 1945) Marudanayagam Pillai V. Manickavasakam Chettiar 155 On appeal, the High Court (Wadsworth and Patanjali Sastri JJ.) held that there was no material irregularity in the proclamation which had prejudiced the appellant. They took the view that the only mistake in the proclamation at the time when it was presented and approved by the court was that the figure of Rs.80,000 should have been Rs.67,000. They considered that the further payments into court beyond the Rs.23,ooo must have been made in respect of sales which were challenged and the payments out must have been on some form of undertaking that the amount would be refunded if the sales were eventually set aside. 1944. Nov. 14, 15, 16 Pringle for the appellant. The whole point is that in the sale proclamation it was stated that the lands were subject to the prior mortgage decree on the footing that it subsisted in full, whereas very substantial payments had been made in reduction of the mortgage. The proclamation did not comply, therefore, with the requirements of Ord. 14, 15, 16 Pringle for the appellant. The whole point is that in the sale proclamation it was stated that the lands were subject to the prior mortgage decree on the footing that it subsisted in full, whereas very substantial payments had been made in reduction of the mortgage. The proclamation did not comply, therefore, with the requirements of Ord. XXI., r. 66, sub-r. 2, of the Code of Civil Procedure, in that it failed to specify as fairly and accurately as possible the amount due under the decree on the prior mortgage, which was an encumbrance to which the land was liable. The result was that there were no bidders at the sale, except the decree-holder, and the lands went for a very small sum. Order XXI., r. 66, casts a duty on the court which conducts the sale to specify as fairly and accurately as possible certain heads, and sub-r. 3 of r. 66 impose a special duty on the respondent to inform the court on all matters required by sub-r.2 to be specified in the proclamation. When there is a change at any time up to the date of sale the court ought to issue a fresh proclamation they ought to take notice of the situation right up to the time of sale Someshwar v. Manilal (A. I. R. ( 1932) B. 210, 212.); Upendra Nath v. Bhudeb Chandra (A. I. R. ( 1914) C. 210.). Therefore, on further reduction being effected after publication of the proclamation, a fresh proclamation should have been issued. It is submitted that the whole substratum of the High Courts judgment—the finding that payments out in satisfaction of the prior mortgage decree were conditional payments—was based on pure assumption and was erroneous. By reason of the above-mentioned breaches of the law, which constituted material irregularities in publishing and conducting the sale, the appellant sustained substantial injury, and the sale should be set aside. Rewcastle K.C. and Sir Alfred Wort for the respondent. First, if the Board are satisfied that there was no material irregularity under Ord, XXI., r. 66, that would end the appeal. The statement in the sale proclamation as to the prior incumbrance was not inaccurate, and there was no irregularity in publishing the sale. When the respondent made his appli- cation under Ord. First, if the Board are satisfied that there was no material irregularity under Ord, XXI., r. 66, that would end the appeal. The statement in the sale proclamation as to the prior incumbrance was not inaccurate, and there was no irregularity in publishing the sale. When the respondent made his appli- cation under Ord. XXI., r. 66, sub-r. 3, he supplied the court with the information he then had, and it cannot be that he has to keep an eye on the encumbrance and report to the court from time to time whether any of it has been paid up. He was under no obligation to do anything further subsequent to the statement. Secondly, if it is held that there was something in the nature of a material failure to comply with r. 66, the appellant, by reason of his conduct in this matter is not entitled to make any complaint on that basis. By waiving his right to a fresh proclamation he accepted the terms of the proclamation, as it stood at the time of the several adjournments of the sale, as accurate. The receiver must have been aware of the position, and the appellant, being in possession of the lands, could not have been unaware of the reduction of the encumbrance on them. Having waived a fresh proclamation he cannot ask for the sale to be set aside. [Reference was made to the following authorities on waiver Girdhari Singh v. Hurdeo N drain Singh (( 1867) L. R. 3 I. A. 230.), Shyam Sunder v. Kaluram Agarwala (( 1938) 42 C. W. N. 1041.), T. R. Arunachellam Chetti v. V. R. R. M. A. R. Arunachellam Chetti (( 1888) L. R. 15 I. A. 171.), Mohan Lal v. Kali Char an (( 1927) I. L. R. 49 A. 788.), and Mahomed Meera Ravuthar v. Savvasi Vijaya Raghunadha Copalar (( 1899) L. R. 27 I. A. 17.).] The appellant has brought himself within the authorities of the Board by coming to the court and obtaining adjournments, and in all the circumstances he is the one man who cannot take any relief. Thirdly, assuming both the first and second points against the respondent, it has not been proved in this case that the proviso to r. 90 of Ord. XXI. is applicable; it has not been shown on the facts of this case that the inaccuracy, if Law. Rep. Thirdly, assuming both the first and second points against the respondent, it has not been proved in this case that the proviso to r. 90 of Ord. XXI. is applicable; it has not been shown on the facts of this case that the inaccuracy, if Law. Rep. 72 Ind. App. 104 ( 1944- 1945) Marudanayagam Pillai V. Manickavasakam Chettiar 156 any, did result in any substantial injury to the appellant within the meaning of r. 90. The reduction in the price here was caused proximately because of the failure of the appellant himself to bring the facts to the notice of the court Pringle in reply. There was undoubtedly a misdescription of such a character as to amount to a material irregularity. Under the statute the respondents duty was a continuing one, and if he gave particulars which afterwards proved to be incorrect, the duty is laid on him to correct them. It is clear that substantial injury was caused to the appellant by reason of the irregularity. Waiver was the price which the appellant had to pay for getting the sale adjourned. Prima facie, all he waived was his right to insist on a second proclamation. In law waiver implies three things (a) an intention to waive; (b) to waive a right which is known to the person waiving it; and (c) the onus of proving such knowledge lies on the person asserting the waiver Dhanukdhari Singh v. Nathima Sahu (( 1907) 11 C. W. N. 848.); Kabilanund Thakur v. Pirthi Chand Lal Chowdhuri (( 1911) 16 C. W. N. 704.); Girdhari Singh v. Hurdeo Narain Singh (L.R. 3 I. A. 230), and Shy am Sunder v. Kaluram Agarwala (42 C. W. N. 1041.). To establish waiver of this particular right of objection to the under-valuation as against the appellant it has to be proved that he, knew of the mistake and that he intended to waive his rights. That has not been shown. Dec. 18. To establish waiver of this particular right of objection to the under-valuation as against the appellant it has to be proved that he, knew of the mistake and that he intended to waive his rights. That has not been shown. Dec. 18. The judgment of their Lordships was delivered by Sir John Beaumont, who stated the facts set out above and continued Their Lordships can find nothing on the record to justify the conjectures of the High Court that the further payments into court beyond the Rs.23,000 must have been made in respect of sales which were challenged, and the further evidence read before their Lordships on behalf of the appellant, without objection from the respondent, consisting of affidavits made in the prior mortgage suit in relation to the payments out, makes it abundantly clear that these payments were only made after the sales had been confirmed. The whole basis of the High Courts judgment therefore fails, and the reasoning has not been relied upon by counsel for the respondent. The learned judges did not think it necessary to consider the evidence as to the state of knowledge of the parties. The respondent based his case on waiver by the appellant, contending that the appellant must have known about the sales of his own property in the prior mortgage suit, and about the disposal of the purchase moneys; that, accordingly, when he waived his right to a fresh proclamation he must be taken to have accepted the statements in the existing proclamation and to have waived his right to object to them, and reliance was placed on the decisions of this Board in Girdhari Singh v. Hurdeo Narain Singh (L.R. 3 I. A. 230) and in Arunachellam Chetti v. Arunachellam Chetti (L. R. 15 I. A. 171,). The efficacy of a plea of waiver by the appellant depends on the ability of the respondent to prove that the appellant knew the true facts from which an intention on his part to waive his right to object to a mis-statement in the proclamation can be inferred. Their Lordships appreciate that there are reasons for suspecting that the appellant may have known more about the dealings with his property in the prior mortgage suit than he was prepared to admit, but they think that there are reasons at least equally cogent for suspecting that the respondent was in like case. Their Lordships appreciate that there are reasons for suspecting that the appellant may have known more about the dealings with his property in the prior mortgage suit than he was prepared to admit, but they think that there are reasons at least equally cogent for suspecting that the respondent was in like case. The respondent was a party to the prior mortgage suit; he was presumably served with notice of the execution proceed ings; and he was interested in seeing that the direction which the court had given, that property subject to the prior mortgage which was not subject to the respondents mortgage should be sold before that subject to the respondents mortgage, was carried out. If the respondent knew the facts; if he purchased at what he knew was too low a figure based on an upset price accepted by the court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud on the court, as the learned Subordinate Judge points out. The court could not have allowed the respondent purchasing at a court sale to take advantage of his own fraud, whatever the conduct of the appellant might have been. However, as already noted, the learned Subordinate Judge did not find fraud against the respondent, nor did he find knowledge on the part of the appellant requisite to found a plea of waiver, and the High Law. Rep. 72 Ind. App. 104 ( 1944- 1945) Marudanayagam Pillai V. Manickavasakam Chettiar 157 Court did not disagree with these findings of fact. Their Lordships think that, whatever grounds for suspicions there may be, there is no material on the record which would justify the Board in disregarding the findings of fact by the Subordinate Judge, who had seen the witnesses, including the appellant himself, in the witness box. Their Lordships, therefore, will dispose of the appeal on the basis that neither the appellant nor the respondent at the material dates knew the position under the prior mortgage. Order XXI., r. 66, imposes on the court the duty of causing a proclamation of the intended sale to be made, and requires the proclamation to be drawn up after notice to the decree-holder and the judgment-debtor, and such proclamation must specify, as fairly and accurately as possible, amongst other things, any encumbrance to which the property is liable. Order XXI., r. 66, imposes on the court the duty of causing a proclamation of the intended sale to be made, and requires the proclamation to be drawn up after notice to the decree-holder and the judgment-debtor, and such proclamation must specify, as fairly and accurately as possible, amongst other things, any encumbrance to which the property is liable. In most cases, no doubt, the court has no means of checking the information supplied by the parties, but the court ought, as far as practicable, to bring its mind to bear on the contents of the proclamation, and, where material is readily available to check the information supplied by the parties, the court ought to avail itself of such material. In the present case all the facts relating to the prior mortgage could have been ascertained by an inspection of the suit register on the files of the court. When the proclamation was settled, and again when the sale took place, it might well have occurred to the officer of the court responsible that it was unlikely that nothing had occurred in the prior mortgage suit since its inception, even if he did not recall having himself sold properties in that suit, and that it was desirable to check the figure of Rs.80,000. The power conferred on the court by r. 66, sub-r.4, for summoning a witness for the purpose of ascertaining the matters to be specified in the proclamation shows that the court is not intended to act blindly on information supplied by the parties. Their Lordships think that the Subordinate Court cannot be acquitted of a measure of carelessness in not having checked this figure of Rs.80,000 both when the proclamation was approved and when the sale subsequently took place. Apart from the duty cast on the court, r.66, sub-r.3, provides that every application for an order for sale shall be accompanied by a statement signed and verified in the manner mentioned, and containing so far as they are known to, or can be ascertained by, the person making the verification, the matters required by sub-r.2 to be specified in the proclamation. It is clear that the respondent, if he did not know the position in the prior mortgage suit, could easily have ascertained it, seeing that he was a party to the suit, which was in the same court. It is clear that the respondent, if he did not know the position in the prior mortgage suit, could easily have ascertained it, seeing that he was a party to the suit, which was in the same court. The position, therefore, is that this sale took place at a serious under-value occasioned by failure on the part of the court, and of the respondent decree-holder, to carry out their obligations under r. 66, and there can be no doubt that the appellant sustained substantial injury thereby. Their Lordships are of opinion that the case falls within the language of r. 90, and that, however dilatory and unsatisfactory the conduct of the appellant may have been, he has not on the facts found debarred himself from the right to have the sale set aside. Their Lordships will humbly advise His Majesty that this appeal be allowed, the order of the High Court be set aside, and the order of the Subordinate Judge be restored. The respondent must pay to the appellant his costs of the appeal to the High Court and of the appeal to His Majesty in Council.