JUDGMENT 1. THIS appeal on behalf of the judgment-debtor No. 3 arises out of an application under section 174 (3) of the Bengal Tenancy Act and also under the provisions of Order 21, Rule 90 of the Code of Civil Procedure for setting aside an auction sale held on September 28, 1956 in Rent Execution Case No. 637 of 1955 on the grounds of material irregularity and fraud in publishing and conducting the sale and also that the petitioner has suffered substantial injury as a result thereof. 2. THE facts shortly are that on April 15, 1953 a suit was instituted for recovery of arrears of rent against six persons, namely, (1) Parbati, (2) Lakshmi (3) Bepin, (4) Atul, (5) Suryamoni and (6) Moynamoyee. On February 3, 1954, the suit was decreed exparte against all. In the same year, the said decree was executed for the first time, giving rise to the Rent Execution Case no. 547 of 1954 which was disposed of on December 9, 1954 without realisation of any sum under the decree. Thereafter on April 20, 1955 the present execution case, being Execution Case No. 637 of 1955, was started by the decree-holder, Malati Manjari Dasi, wife of Suryakanta Jana (Respondent No. 1 herein), in the Court of the Second Munsif, Bashirhat against the said six persons for the total claim of Rs. 675/15/- inclusive of costs. On that very day there is an order of the learned munsif for the issue of a combined order of attachment and sale proclamation under the provisions of section 168 of the Bengal Tenancy Act and July 7, 1955, was fixed for putting up the defaulting holding to sale, which sale was not held on that date. It was adjourned to 25th July, 1955, on which date, the learned Munsif found that the property sought to be attached and proposed to be sold, have already been sold in another execution case, namely, Rent Execution Case No. 123 of 1955 of the said Court and auction-purchased by third parties, namely, Mussammat Aminunessa Bibi and Shibdas Kundu. On that basis the learned Munsif also found that the judgment-debtor had no saleable interest in that property and so the decree-holder could not proceed against the property in the instant execution case, namely, No. 637 of 1955. On that basis the learned Munsif also found that the judgment-debtor had no saleable interest in that property and so the decree-holder could not proceed against the property in the instant execution case, namely, No. 637 of 1955. However, liberty was given to the decree-holder to proceed with the execution by amending the same if so advised and 9th August, 1955 was fixed for taking steps. On August 9, the decree-holder files a petition (Exhibit 2), stating that she does not admit that the execution cannot proceed but avers that in any event, the right, title and interest of Atul having -/4/- annas share in the property, not having been sold in the other execution case, might be proceeded against in the present execution case. On the said application the learned Munsif passed an order giving permission to the decree-holder to proceed in respect of only -/4/- annas share of Atul (judgment-debtor No. 4 in the present case). An order was passed by the learned Munsif after hearing the pleaders that the decree-holder was to take steps for service of notice upon the heirs of Behari, viz., Atul and others. In other words, permission was given to the decree-holder to proceed against Behari's heirs only, in respect of -/4/- annas share in the property and not against the other judgment-debtors. But it appears from the subsequent proceedings, that notices have been served on all the judgment-debtors, namely, the said six persons and the properties in excess of -/4/- annas share were sold on September 28, 1956 and purchased by the decree-holder's husband, the said Surya Kanta Jana. The sale was confirmed on November 22, 1956. On May 5, 1958 the present application by judgment-debtor No. 3 was filed for setting aside the sale, giving rise to Miscellaneous Case No. 70 of 1958. The learned Munsif allowed the application. The auction-purchaser filed an appeal there from to the Court of appeal below which was allowed. Judgment-debtor No. 3 then filed this appeal and also filed an application for revision against the said order on which a Rule was also issued, which has been disposed of separately. 3. The learned Munsif allowed the application. The auction-purchaser filed an appeal there from to the Court of appeal below which was allowed. Judgment-debtor No. 3 then filed this appeal and also filed an application for revision against the said order on which a Rule was also issued, which has been disposed of separately. 3. THE first point that arises in this appeal is that although the value set forth in the said proclamation may have been grossly low and the sale, as a result thereof, may have been for a price which caused substantial injury to the judgment-debtor appellant, still the same could not be set aside on the ground of such under-valuation. Mr. Banerjee appearing on behalf of the respondent strongly relied on the Bench decision of this Court reported in (1) 37 C. W. N. 1054, The New Birbhum Coal Company Ltd. v. Surendra Nath for the said proposition. Reliance was placed by their Lordships D. N. Mitter and M. C. Ghosh, JJ. in deciding the New Birbhum's case on the Privy Council decision reported in (2) 15 LA. 171 (Arunachellam Chetti v. Arunachellam Chetti). Their Lordships also sought to distinguish two other Privy Council decisions, viz., (3) Sadatmand Khan v. Phul Kuar, reported in 25 LA. 146 and (4) Tekait Krishna Prasad v. Moti Chand, reported in 40 LA. 140. Sitting singly I was bound to follow the said decision in 37 C. W. N. 1054 but Mr. Apurba Dhan Mukherjee, the learned Advocate for the appellant, submitted that in view of the later Bench decision of this Court, which I am dealing hereafter, I am free to express my opinion on the said decision. In my view the facts and surrounding circumstances in (2) Arunachellam's case (15 LA. 171 supra) were different, at least on two grounds, viz., that (i) the High. Court assumed without any evidence that there had been substantial injury resulting from the irregularity in the sale and (ii) that the judgment-debtors made no complaint before the holding of the sale as to the alleged insufficiency of description. But if we look closely the New Birbhum's case, we find that the objection was taken before the sale, as to the proposed valuation and the Court found on evidence that there had been 'substantial injury' to the judgment-debtors as a result thereof. But if we look closely the New Birbhum's case, we find that the objection was taken before the sale, as to the proposed valuation and the Court found on evidence that there had been 'substantial injury' to the judgment-debtors as a result thereof. The said decision in new Birbhum's case proceeded on the basis as if the valuation is a matter of description. The said view is hardly well founded. The other learned Judge M. C. Ghose, J. does not seem to have been troubled over any doubt or difficulty in deciding the New Birbhum's case. This is because his Lordship proceeded upon the grounds viz., that (i) "properties seldom fetch their market value in a Court auction", and (ii) "none of them (witnesses) stated that it was the under-valuation of the property which led to a low price at the sale". With respect, the main point is however missed by M. C. Ghose, J. It was not the market value but the fair price that the Code of Civil Procedure intends to secure at a Court auction and no Court in my view is really helpless with the elaborate provisions of the Code to assist it. As to his Lordship's second ground, the Indian Evidence Act does not require all facts to be proved by the direct testimony of witnesses. Even in conservative England this theory was excluded by Jeremy Bentham over a hundred years ago. 4. IN a similar case where a sale of immovable property in execution of a mortgage decree was challenged, their Lordships of the Judicial Committee held in (5) Marudanyagam Pillai v. Manickauasakam Chettiar, reported in 72 LA. 104: 49 C. W. N. 292:, A. I. R. 1945 P. C. 68 that when a sale took place by a serious undervalue, occasioned by failure on the part of the Court and of the decree-holder to carry out their obligations under Or. 21, r. 66 C. P. C. there can be no doubt that the judgment-debtor sustained substantial injury thereby and that the case falls within the meaning of Or. 21, r. 90 of the Code and that however dilatory and unsatisfactory the conduct of the judgment-debtor may have been, he has not debarred himself from the right to have the sale set aside. 21, r. 90 of the Code and that however dilatory and unsatisfactory the conduct of the judgment-debtor may have been, he has not debarred himself from the right to have the sale set aside. Their Lordships laid down a caution that the Court is not intended to act blindly on informations supplied by the parties, as Or. 21, 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 as fairly and accurately as possible, specifying the particulars mentioned in the said Rule. It was also laid down that where material was readily available to check the information supplied by the parties, the Court ought to avail itself of such material. Their Lordships also found that if the decree-holder 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 a fraud on the Court and the Court could not have allowed the decree-holder purchasing at a Court sale to take advantage of his own fraud what ever the conduct of the judgment-debtor might have been. Both the said decisions of (1) New Birbhum Coal Co. Ltd. v. Surendra Nath (supra) as well as the said Privy Council decision in (5) 72 I. A. 104 were considered in another later Bench decision of this Court in (6) Monmatha Nath v. Sachindra Kumar, reported in 59 C. W. N. 1082 which was a case almost similar to the case of New Birbhurn. Their Lordships after noticing New Birbhum's case held that if it be found that the execution creditors knew of the real value or had means of ascertaining it and yet did not state the real value it would, according to the principles laid down by the Judicial Committee in (5) 72 I. A. 104 (supra) be sufficient evidence of fraud so as to vitiate the sale. 5. IT follows therefore that the principles of law laid down in the case of (l) New Birbhurn, v. Surendra Nath (37 C. W. N. 1054) are therefore no longer good law in view of the said two decisions in 72 I. A. 104 and 59 C. W. N. 1082. 5. IT follows therefore that the principles of law laid down in the case of (l) New Birbhurn, v. Surendra Nath (37 C. W. N. 1054) are therefore no longer good law in view of the said two decisions in 72 I. A. 104 and 59 C. W. N. 1082. It further follows that their lordships D. N. Mitter and M. C. Ghose, JJ. were in error in distinguishing the said cases of (3) Sadatmand Khan and (4) T. K. Prasad (25 I. A. 146 and 40 I. A. 140 respectively), which still hold the field so far as this branch of the law is concerned. 6. THE second point was a point of limitation which has been found also by the learned Subordinate Judge against the judgment-debtor appellant which has also been seriously contested by Mr. Apurba Dhan Mukherjee. It was argued by Mr. Banerjee on the other hand that even if there is a fraud arising from gross under-valuation, the same is, however, not by itself fraudulent concealment within the meaning of section 18 of the Indian Limitation Act. Reliance was placed by the learned Advocate on a decision of Bachawat, J. in (7) Baswali Sheikh v. Matangi Charan Ghose, reported in 61 C. W. N. 468 in support of the said proposition. Mr. Mukherjee contended, that the proposition laid down therein by his Lordship Bachawat, J. is bit widely stated and should not have been laid down in such a general and abstract form, particularly after the said decision of the Judicial Committee in (5) 72 I. A. 104 and the Bench decision of this Court in (6) 59 C. W. N. 1082. Whether the same has been widely stated or not which, if necessary, might be dealt with in an appropriate case, it seems clear to me that the facts giving rise to the said decision in 61 C. W. N. 468 are different from the facts in the present case. As an instance, there is no service of process on the appellant in the present case. It is on the other hand found that all the processes were suppressed, obviously With the object of keeping the petitioner from knowledge of the same. Mr. Banerjee cannot call in aid the said proposition in the instant case and his second contention also fails. Lastly Mr. It is on the other hand found that all the processes were suppressed, obviously With the object of keeping the petitioner from knowledge of the same. Mr. Banerjee cannot call in aid the said proposition in the instant case and his second contention also fails. Lastly Mr. Mukherjee contended that the sale is without jurisdiction in view of the fact that by an express order of the learned Munsif the decree-holder was given the right to proceed in execution against Behari's heirs only, viz., the judgment-debtors Nos. 4, 5 and 6 in respect of only the -/4/- annas share in the property and therefore all the proceedings consequent thereto resulting in the sale, are without jurisdiction. Mr. Banerjee in answer contended that this objection had been taken in this Court for the first time and his client had no opportunity to rebut the same. At first I thought it would be proper for me to send the case back on remand in order to give an opportunity to the auction-purchaser to meet the said point but after anxious consideration and on a closer scrutiny i find that there is no merit in this objection also. I must hold, as it appears from the record and particularly on the specific order passed, which have been stated in the first portion of the judgment, that the impugned sale on the face of it is bad and ought to be set aside on this ground alone. 7. I, therefore, allow the appeal after setting aside the judgment of the lower appellate court. The judgment and order of the trial court dated 20.8.59 and 4.9.59 respectively are affirmed. The application for reception of additional evidence, being not pressed, no order is passed thereon and the same would be treated as disposed of. Leave to appeal under clause 15 of the Letters Patent is asked for and is refused. There will be no order for costs in this appeal.