( 1 ) THIS is a judgment-debtor's application under Section 115 of the Procedure Code. The judgment-debtor is Prabodh Chandra Mukherjee. ( 2 ) ON February 3, 1962, he moved a learned Subordinate Judge qua executing, under Order 21, Rule 90 ibid. for setting aside a sale held on August 13, 1958, of some 13 cottahs of land situate in Paschim Barisa within the jurisdiction of Behala police-station in the south-western suburbs of the town of Calcutta. The learned Judge did set aside the sale, by his order dated September 11, 1963, on the basis of three broad findings come to by him. First : limitation (30 days from the date of the sale : article 166 of the Limitation Act 9 of 1908) could not stand between the petitioning judgment-debtor and his success, because he was kept back from the knowledge of the sale till January 23, 1962, by fraud practised on him. Second : material irregularity and fraud in publishing and conducting the sale had vitiated it. Third : the land the value of which would be Rs. 6,000 in 1958 was valued at Rs. 300 in the sale proclamation and sold for Rs. 450 which had caused substantial injury to the petitioner. ( 3 ) BINODINI Dassi, a purchaser from an auction-purchaser in the aforesaid sale of August 13, 1958, had alone resisted the judgment-debtor's petition under Order 21, Rule 90. She carried the matter on appeal. A learned Additional District Judge, who had heard the appeal, held just the opposite, and allowed the appeal, by his order dated February 12, 1964. ( 4 ) THIS is why the petitioning judgment-debtor has come up to this Court in revision. ( 5 ) HERE also, only Binodini Dassi, opposite party No. 3, contests this revisional application. The other two, Pasupati Mukherjee (opposite party No. 1) and Kishori Mohan Chaudhuri (opposite party No. 2) do not. Only to know who they are. Kishori is the auction-purchaser is the Court sale of August 13, 1958, and the vendor of Binodini. Pasupati is the decree-holder in whose favour were awarded inter alia costs of Rs. 327. The other two, Pasupati Mukherjee (opposite party No. 1) and Kishori Mohan Chaudhuri (opposite party No. 2) do not. Only to know who they are. Kishori is the auction-purchaser is the Court sale of August 13, 1958, and the vendor of Binodini. Pasupati is the decree-holder in whose favour were awarded inter alia costs of Rs. 327. 07 paise against the petitioner Prabodh and his group : vide the final decree dated February 7, 1957, exhibit C (1), in a partition suit - Title Suit No. 175 of 1948 - in the second Court of the Subordinate Judge, Alipore, Pasupati having been plaintiff No. 1 there with Prabodh and his group as plaintiffs 6-10. On May 16, 1958, Pasupati put this very de into execution, during the carriage of which the disputed land, admeasuring a little less than 13 cottahs, which again was allotted exclusively by the same decree to Prabodh and his group was sold for Rs. 450 on August 13, 1958. ( 6 ) ONE fact, shocking to my judicial conscience, comes in the forefront, as I hear Mr. Roy Chowdhury for the petitioner and Mr. Ghosh for opposite party No. 3 and as I examine the records. Here is some 13 cottahs of land, to be exact, 12 cottahs 13 chhataks and 24 square feet of land, situate in Paschim Barisa within the jurisdiction of Behala Municipality and police-station in the south-western suburbs of the town of Calcutta. More, it is a land on a level higher than that of other lands in the locality, as the pleader Commissioner, Shri Charu Chandra Bhattacharya, the contesting opposite party's witness no. 3, who held a local inspection says in his evidence. What is still more, it is only 4 minutes' walk from that well-known road called Diamond Harbour Road on its east. The Municipal Road is on its adjacent south. And the whole area had the amenity of electricity come "8/10 years back", that is to say, in 1952-54, Girindra Kr. Mookerjee, an old man of 65, a resident of the locality, his house being "3/4 minutes' walk" from the land in controversy, and the third witness for the petitioner says so in chief. About the topography of the land, he is not cross-examined save that it is elicited from him :"the last Electric post is about 200 ft. off from the suit land. About the topography of the land, he is not cross-examined save that it is elicited from him :"the last Electric post is about 200 ft. off from the suit land. " So, his evidence on the situation and milieu of the disputed land stands. Such is the land which the decree-holder Pasupati, opposite party No. 1 before me, valued in his sale-proclamation on July 2, 1958 at Rs. 300 by guess :x x x x x in the last column of the schedule of the property to be sold. Such is the land which the auction-purchaser Kishori purchased for Rs. 450 on August 13, 1958. And 1958 is eleven years after the partition of India and Bengal in 1947. It therefore comes to this : In 1958, Pasupati, the decree-holder, was valuing such land at, say, Rs. 23 a cottah, and to make the narration complete, Kishori, the auction-purchaser, was purchasing it at, say, Rs. 35 a cottah. I am concerned now with the valuation put by Pasupati : Rs. 23 a cottah. If this will not shock the conscience of a Judge, the Judge, I am afraid, has no conscience to be shocked. That 11 years after the dichotomy of India, and Bengal in particular, the land value in the suburbs of Calcutta could be as low as that - even a part of moderately good shoes would cost as much - is such a notorious fact that I can, in safety, take judicial notice of it under Section 57 of the Evidence Act 1 of 1872. Partition of Bengal, the truncated Bengal we live in now having been reduced, after partition, say, to one-third of what she was before, influx of our brothers and sisters in never-ending waves from across the border, increase of the land-hungry, the consequential upping, and still more upping, of the land value here, there and everywhere, and the more so in Calcutta and its suburbs - these are all matters of public history, matters of common knowledge, matters of universal notoriety, so familiar to a Judge unless he deliberately chooses to be deaf and blind. If an English Court of appeal can take judicial notice of the known conditions of traffic in London, with large numbers of motors cars and crowded motor buses about the streets, necessarily therefore so crowded and dangerous, Dennis v. A. J. White and Co. If an English Court of appeal can take judicial notice of the known conditions of traffic in London, with large numbers of motors cars and crowded motor buses about the streets, necessarily therefore so crowded and dangerous, Dennis v. A. J. White and Co. , (1916) 2 KB 1, if our Courts here can take judicial notice of a certain political movement being a movement prejudicial to the public safety (Prabodh Chandra Chakravarty v. Emperor, 1932 I. L. R. 60 Calcutta 351 : 36 C. W. N. 1158), of the explosive ferment and mounting hatred on both sides of the Radcliffe line, more specially in the month of August 1947 (M/s. Ghaki Mal Hukum Chand v. Great American Insurance Co. Ltd. : A. I. R. 1960 Punjab 523), of the riots that took place in Andhra on Sriramulu's fast unto death followed by his eventual death (Union of India v. M/s. Natabarlal Jayshankar : A. I. R. 1963 Orissa 66) - and such instances can be multiplied - surely I can also take judicial notice of the fact that, in 1958, the land I see here - what it is like and where it is have just been noticed and need not therefore be reiterated - could not have sold at Rs. 23 a cottah, the valuation the decree-holder put in the sale-proclamation on July 2, 1958. In having come to this conclusion, I do not import personal knowledge which, Mr. Ghosh, the learned advocate for the answering opposite party, rightly warns, I cannot and must not import. Indeed, even a soupcon of personal knowledge have I not. Because, never have I been a buyer or seller of land. Nor have I witnessed any sale ever. I am simply taking judicial notice of facts so well-known. The learned Subordinate Judge, I am glad to be able to record is cognizant of such an approach, when he observes:"it is a common fact that since the partition of Bengal, the value of lands in West Bengal, specially in Municipal areas, is increasing almost every day. "the learned appellate Judge, however, does not refer to so material a consideration at all and thereby ignores, in the exercise of his jurisdiction, what should have been in his forefront. "the learned appellate Judge, however, does not refer to so material a consideration at all and thereby ignores, in the exercise of his jurisdiction, what should have been in his forefront. ( 7 ) SO far then all I have come to is a negative finding : that the value of the land in controversy could never, never be what the decree-holder Pasupati proclaimed in his sale-proclamation of July 2, 1958. But there must be a positive finding as well. What would be the proper value of this land in or about 1958? Fortunately, there is good enough evidence on record to answer the question, in answering which, however, the two Judges below have taken opposite views. Whereas the first Judge takes into his consideration two registered sale-deeds of undoubted authenticity, exhibits 4 and 4/a, dated December 24, 1957, and June 16, 1958, respectively, each recording a sale of 3 cottahs of vacant land just here, that is to say, in Paschim Barisa, for Rs. 1,500 (which works out at the rate of Rs. 500 a cottah), comments and very rightly too, on Binodini, the answering opposite party before me, withholding her own sale-deed by which she had purchased the land in controversy from the auction-purchaser, Kishori (opposite party No. 2 here), surely after August 13, 1958, the date of the impugned sale, - a sale-deed which would have shown what price she had paid for this very land in or about 1958 -, and then finds as a fact that the value of the entire land in dispute was Rs. 6,000 is 1958 - (by the rule of three it would be a little more) - ; the appellate Judge comes to findings as under : a. "it is a matter of common knowledge that market price or competitive price of property at Court sales is hardly fetched. Court sales almost invariably fetch a low price as they are likely to be burdened with litigations. " b. The sale-deeds the learned Subordinate Judge has relied upon, in aid of his finding that the value of the disputed land would be Rs. 6,000 in 1958,"cannot be considered as a sure basis. " Because in the original suit itself - Title Suit No. 175 of 1948 for partition, in which the petitioner and his group were co-plaintiffs (see paragraph 5 ante) - valuation was put by all at Rs. 6,000 in 1958,"cannot be considered as a sure basis. " Because in the original suit itself - Title Suit No. 175 of 1948 for partition, in which the petitioner and his group were co-plaintiffs (see paragraph 5 ante) - valuation was put by all at Rs. 60 a cottah which would make the value of the land here"something like Rs. 300 or thereabouts. " (Why Rs. 300 ? 12 odd cottahs multiplied by Rs. 60 would be Rs. 720 and more.)C. It is likely that the decree-holder Pasupati was not aware on or about July 2, 1958 of the value of the immoveable property in the locality "at a price much higher than Rs. 30 per cottah. "d. His due having amounted to Rs. 327 odd, "it was not to his interest to give a greater valuation. "e. "undervaluation, if any, might be due to carelessness. "f. "lands in dispute are under-developed and full of jungle. " Such has been the admission of the petitioner Prabodh. G. "gross inadequacy of a land sold at a Court's sale alone cannot be a ground for holding the sale as fraudulent. "underneath this motley of findings, which compare so unfavourably with the clear and precise finding of the learned Subordinate Judge, is to be seen by the clearest implication, and more, gross undervaluation of the land in controversy, as will be evident from the comments I make below of the findings seriatim : a. This is a routine observation, for what it is worth, on the question if the price fetched at the sale is so shockingly low as to suggest fraud. But I am not on that. Indeed, I need not go as far as that. I am on an earlier stage - the stage where the execution-creditor Pasupati incorporates the statement of value in the sale-proclamation at Rs. 300. And I ask myself if such statement constitutes fraud upon the Court and if the Court in allowing such value to be proclaimed convicts itself of extreme carelessness. What is however noticeable in the learned appellate Judge's finding here is that in a way he concedes the valuation to be on the low side. B. Here the appellate Court shuts its eyes to a truism which the Court of first instance is awake to, as noticed in part in paragraph 6 ante :"evidently, the partition suit was instituted in 1948. B. Here the appellate Court shuts its eyes to a truism which the Court of first instance is awake to, as noticed in part in paragraph 6 ante :"evidently, the partition suit was instituted in 1948. It is a common fact that since the partition of Bengal, the value of lands in West Bengal, specially in Municipal areas, is increasing almost everyday, and the valuation of 1948 is no standard for judging the valuation of 1958," - and acts with material irregularity, in the exercise of its jurisdiction. Worse, still, in 1958, to stick to the land value of 1948, and that too on the foot of a plaint, when it is well-known that the plaintiffs vie with one another in undervaluing the suit properties with a view to jumping, as far as they can, the levy under the Court Fees Act 7 of 1870 or the Stamp Act 2 of 1899 (in case of partition decrees), and to pass by the two authentic registered sale-deeds of December 24, 1957 and June 16, 1958 as not furnishing"a sure basis", because of such land value in the plaint of 1948, just as the Appellate Court has done, is not to do duty imposed upon the said Court by law and to come to a decision without considering much the most material evidence. Such failure of duty is really failure to appreciate and determine the true question of fact vitally affecting the decision come to. And it does pertain to the manner of exercise of the Appellate Court's jurisdiction, giving me jurisdiction to interfere under Section 115. Again, to say that the land value will be "something like Rs. 300" in defiance of the two sale-deeds, as the Appellate Court does, is to find the gross undervaluation of the land. C. An observation as this rests on no evidence, showing once more how illegally and with what material irregularity the Appellate Court acts in the exercise of its jurisdiction. The concept of illegality is not founded on breach of statute law only. To record a finding on no evidence is a species of illegality too. Again, the finding under comment now is a concession of the disputed land's gross undervaluation. The concept of illegality is not founded on breach of statute law only. To record a finding on no evidence is a species of illegality too. Again, the finding under comment now is a concession of the disputed land's gross undervaluation. D. To say what the learned Judge says here is to confess that, in no case, the execution-creditor will put any value in the sale-proclamation higher than what is his due, no matter how valuable the property to be sold is - a proposition which refutes itself. More, in governing himself by such proposition, the learned Judge has done all he can to see that a court-sale may be reduced to a farce and may not have any relation to the fair value of the property to be sold, to secure which so many provisions are there in Order 21. One more proof of the learned Judge having failed to determine the true question and having thereby acted in the exercise of his jurisdiction illegally and with material irregularity. It is also a confession on the part of the learned Judge, in an indirect manner though, of the disputed land's gross undervaluation. E. At last, by this finding, the learned Judge sees undervaluation, though in a guarded manner because of the words "if any", and attributes it to carelessness. Who says so? None, save the Judge. So, this merits the same treatment as in C above. F. The learned Judge is partly right here. The petitioner Prabodh does say that the disputed land is "covered by jungle" as is attributed to him. But he says a little more too : 'nothing is raised on the land which has about 8 cocoanut trees. The land is on the main road of the Municipality and about one mile or one mile and a half from Behala Police Station'. The learned Judge does not consider this. Nor does he consider the telling facts set out in paragraph 6 ante - facts which I have gleaned from the recorded evidence. He considers only Prabodh's admission of the land being covered by jungle which, in the context of the land's milieu, must necessarily mean waste land with a growth of shrubs and the like all around. Not that it is a forest where wild animals roam about. What time and money will be required to clear such a jungle? He considers only Prabodh's admission of the land being covered by jungle which, in the context of the land's milieu, must necessarily mean waste land with a growth of shrubs and the like all around. Not that it is a forest where wild animals roam about. What time and money will be required to clear such a jungle? And how much will a jungle as this detract from the land's value? Waste lands in and about Chowringhee are full of such jungles too. Who has ever heard of their value going down for that little? Then, the Judge says, the land is underdeveloped. A finding on no evidence again. Worse still, a finding too in defiance of evidence. Once more to the glare of facts narrated in paragraph 6 ante. With electricity, and that important thoroughfare : Diamond Harbour Road, within a stone's throw, so to say, and right on the municipal road, it is using incorrect language to say that the lie of the land is in an under-developed area, though, of course, it is not in a well-developed zone like Chowringhee or Chittaranjan Avenue. And the learned Judge succeeds in using such incorrect language or in belittling the land as full of jungle, only because he suffers himself to be untrammeled by evidence on record, thereby acting in the exercise of his jurisdiction with material irregularity. Here also what is seen is a veiled concession by the learned Judge of the land's undervalue coupling with a justification which, as has been my endeavour to show, cannot justify itself. Withholding of her sale-deed by Binodini - a sale-deed which would have at once shown what was what about the value of this very land in 1958 - is a consideration which arrests the attention of the first Judge, but eludes that of the appellate Judge who thereby brings himself open to the charge of having acted in the exercise of his jurisdiction with material irregularity. It is time now to record the conclusion I have come to, upon all that goes before in this paragraph and in the proceeding one. The conclusion is : the first Court's finding on valuation stands; the Appellate Court's does not. Which means that the land in dispute is valued at Rs. 6,000. If such finding errs, it errs on a low side. The conclusion is : the first Court's finding on valuation stands; the Appellate Court's does not. Which means that the land in dispute is valued at Rs. 6,000. If such finding errs, it errs on a low side. G. To the finding recorded here by the learned appellate Judge, all I need say is : If the execution creditor Pasupati would put in the value of some 13 cottahs of land in Paschim Barisa (fully described in paragraph 6 ante) at Rs. 3. 00 only, in the sale-proclamation in 1958, by suppression of its fair value, which is, in the least, Rs. 6,000 his conduct would be fraud on the Court which would also stand self-convicted of extreme carelessness. So I say, governing myself by the Privy Council decision in Marudanyagam Pillai v. Manickavasakam Chettiar, (1944) 72 IA 104 : 49 CWN 292 : AIR 1945 PC 68, a case one cannot do without, when deciding an application under Order 21, Rule 90, and a Bench decision of this Court presided over by Chakravartti, C. J. and Lahiri, J. (as his Lordship then was) in Manmatha Nath Chakravarty v. Sachindra Kumar Chakravarty, (1955) 59 CWN 1082 : AIR 1956 Cal. 59 . I owe it to Mr. Roy Choudhuri, the learned advocate for the petitioner, to record that these are the two cases he refers me to. ( 8 ) TO understand (5) Marudanyagam's case, one under Order 21, Rule 90, a list of dates is apt to assist one's convenience : (1) July 27, 1931 : The mortgagee obtained a final decree for Rs. 66,778-11 and 9 pies. (2) December 15, 1931 : The mortgagee execution-creditor submitted a draft sale-proclamation putting the upset price at Rs. 7,317. So low a valuation, because of a prior charge of Rs. 80,000 as respects the properties mortgaged : also the subject matter of a suit in the same Court. This prior charge however was then reduced by Rs. 23,000. (3) October 6, 1932 : The draft proclamation was approved, and the execution-creditor's valuation as the upset price was adopted by the Court, the mortgagor judgment-debtor lying by after having taken several postponements. But then the prior charge had been reduced by a further Rs. 30,444. (4) March 28, 1933 : Leave of the Court obtained, the execution-creditor purchased at Rs. But then the prior charge had been reduced by a further Rs. 30,444. (4) March 28, 1933 : Leave of the Court obtained, the execution-creditor purchased at Rs. 16 above the upset price, when the prior charge was reduced still further by Rs. 16,000. (5) June 19, 1933 : The judgment-debtor applied under Order 21 Rule 90. ( 9 ) MARCH 28, 1933, the date of the sale, to June 19, 1933 the date of the application under Order 21 Rule 90, is 83 days - 53 days more than the period of limitation : 30 days, prescribed by Article 166 of the Limitation Act 9 of 1908. Still their Lordships (whose judgment was delivered by Sir John Beaumont) set aside the sale. Because, 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. The power conferred by Rule 66, sub-rule (4), or Order 21, 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 the information supplied by the parties. (So blind, indeed, the Court was that on the date of sale (March 28, 1933) the prior charge of Rs. 80,000 stood, though it was then reduced by Rs. 69,444 : Rs. 23,000 by December 15, 1931, plus Rs. 30,444 by October 6, 1932, plus Rs. 16,000 by March 28, 1933 this total sum being stated by Sir John Beaumont presumably in the round figure of Rs. 69,000.) The executing Court could not therefore be acquitted of a measure of carelessness in not having checked the figure of Rs. 80,000 both when the proclamation was approved and when the sale subsequently took place. ( 10 ) NOW, apply the principle of (5) Marudanyagam's case here. The executing Court did act blindly in passing the execution-creditor's draft sale-proclamation proclaiming the valuation of some 13 cottah of Paschim Barisa land at Rs. 300 on the foot of his application dated June 5, 1958, and field on June 7, 1958 under Rule 66, sub-rule 3 of Order 21, wherein it was stated too : x x x x x which, turned into English, reads :"the value of the aforesaid property would be Rs. 300 by guess. 300 on the foot of his application dated June 5, 1958, and field on June 7, 1958 under Rule 66, sub-rule 3 of Order 21, wherein it was stated too : x x x x x which, turned into English, reads :"the value of the aforesaid property would be Rs. 300 by guess. "as usual, notices did issue on the judgment-debtors (one of whom is the petitioner before me) on or about June 7, 1958 : vide Order No. 4 of that date in the order-sheet. Assume, the notices were duly served - a matter to which much labour has been devoted at the trial and in appeal and assume too that the judgment-debtors, including the petitioner, lay by. This brings forth two contentions from Mr. Ghosh, the first of which is that, by virtue of its rule-making powers under Section 122 of the Procedure Code, this Court has added to sub-rule 2 of Rule 66 a proviso :"provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties"- a provision, nothing like which is in Madras (5) Marudanyagam's case being a case from Madras, and which has received full effect in the executing Court here. Why charge it then with having been blind? This proviso permits it to be blind. ( 11 ) NICE though such a contention looks at the first blush, in reality, it is destitute of merit. This proviso, be it emphasized, is a proviso only to sub-rule 2 which prescribes inter alia that, in the proclamation, shall be stated the time and place of sale, and shall be specified too as fairly and accurately as possible several detail such as (a) the property to be sold, (b) the revenue when the property to be sold pays revenue to Government, (c) any incumbrance, (d) the decretal dues, and (e) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property. The proviso again is an enabling provision. All it enables the Court to do is not to give its own estimate of the value. It shall not be necessary for the Court to do so, as the proviso says. The proviso again is an enabling provision. All it enables the Court to do is not to give its own estimate of the value. It shall not be necessary for the Court to do so, as the proviso says. So the Court may still give its own estimate. By doing so, the Court does not come on the proviso's edge. Again, the proviso prescribes that the proclamation shall include the estimate of either or both of the parties - the execution-creditor and the judgment-debtor. What will the estimate be like? It shall specify as fairly and accurately as possible the detail listed in clauses (a) to (e) of sub-rule 2 - a region into which the proviso makes no inroad. The proviso is, therefore, that and that only, and no more, curtailing the provisions of sub-rule 2, to which alone it is a proviso to that little. It does not relieve the Court of its duty to see that the detail listed in Rule 2 is specified in the proclamation - which is the Court's proclamation, not the party's - as fairly and accurately as possible. Say, an execution-creditor specifies the value of land in Rashbehari Avenue which works out at Rs. 5 a cottah, and the judgment-debtor lies by. Does the Court do its duty by allowing the proclamation to proclaim so, in spite of this proviso according to which the proclamation shall include the estimate of the execution-creditor? It does not. Because an estimate as this is the height of unfairness and the height of inaccuracy too. And the proviso does not say : the proclamation shall include the estimate, no matter how unfair or how inaccurate it is. It says instead : the proclamation shall include the estimate of either party - an estimate which under the main provision of sub-rule 2, not curtailed by the proviso, shall be specified as fairly and accurately as possible. To put the value of some fair value is at least Rs. 6,000 is the negation of fairness and accuracy. Surely the proviso does not confer on the execution-creditor a licence to be dishonest. Nor does it tell the Court to wink at his dishonesty. ( 12 ) THIS is but one answer to Mr. Ghosh's contention. There is still another. 6,000 is the negation of fairness and accuracy. Surely the proviso does not confer on the execution-creditor a licence to be dishonest. Nor does it tell the Court to wink at his dishonesty. ( 12 ) THIS is but one answer to Mr. Ghosh's contention. There is still another. Sub-rule 4 of Rule 66 remains untouched by this proviso or any other made by the rule-making powers of this Court. So, for the purpose of ascertaining the matters to be specified in the proclamation - valuation, estimated by the decree-holder, is one such matter - the Court may summon witnesses. It shows that the Court is not intended to act blindly on information supplied by parties (here the execution-creditor Pasupati ). So the reasoning of Sir John Beaumont applies in full force in this Bengal case too, in spite of the added proviso to sub-rule 2 only. ( 13 ) AGAIN, sub-rule 3, not hit by the added proviso, requires the execution-creditor to file an application for an order for sale, accompanied by a statement, verified in a manner pleadings are verified, and containing the matters to be specified in the proclamation under sub-rule 2. One such matter is valuation of the property to be sold. The execution-creditor here did file such application and statement, rolled into one, on June 7, 1958. (See paragraph 10 ante ). He did verify it too, stating that all particulars, including the valuation of Rs. 300, were true to his knowledge. Knowledge indeed! And the Court will be slave to such verification which verifies so apparent a falsity! That is why sub-rule 4 is there, casting a duty upon the Court to check the figure of Rs. 300 by summoning witnesses. No doubt, the language is : the Court may summon any person. But the Court is entrusted by the statute with the power to see that the particulars specified in the proclamation are fair and accurate. So it becomes the Court's duty to exercise such power. Exercising such power and doing such duty, the Court will say to the execution-creditor, in the hypothetical case taken about land in Rashbehari Avenue at Rs. 5 a cottah : 'your statement is most unfair and inaccurate. I do not accept it. File another. ' Or the Court may give its won estimate too. Exercising such power and doing such duty, the Court will say to the execution-creditor, in the hypothetical case taken about land in Rashbehari Avenue at Rs. 5 a cottah : 'your statement is most unfair and inaccurate. I do not accept it. File another. ' Or the Court may give its won estimate too. The Calcutta proviso, an enabling provision, does not prevent the Court from doing so. ( 14 ) IN my opinion, therefore, Mr. Ghosh's submission about the proviso in sub-rule (2) of Rule 66 is not the right way to look at the matter. Indeed, in whatever way you look at it, if you see the problem whole in the light of sub-rule 2 and the other sub-rules too, of rule 66, it is plain to be seen that the Calcutta amendment of sub-rule 2 has not brought in a millennium for unscrupulous execution-creditors. The first contention of Mr. Ghosh, noticed in paragraph 10 ante, therefore fails. ( 15 ) HIS second contention is : 'look to another proviso, substituted for the old one, to Rule 90 of Order 21, by this Court again, by virtue of its rule-making powers. Under clause (ii) of this proviso, no sale shall be set aside on the ground of any defect in the proclamation at the instance of any person (here the petitioner Probodh) who after the notice did not attend at the drawing up of the proclamation - a fact which I have taken for granted. (See paragraph 10 ante ). So, how can you set aside the sale here? ( 16 ) RESERVING my comment on the expression : any defect in the proclamation, (see paragraph 20 infra), I say now, the Court is not setting aside the sale at the instance of the petitioner. The Court sees the gross carelessness it is guilty of in the drawing up of the sale proclamation. The Court sees too the substantial injury (Rs. 6,000 minus Rs. 450 = Rs. 5,500) the petitioner has sustained by reason of such inexcusable carelessness. And the Court is setting aside the sale suo motu, acting on the principle that no litigant shall suffer for the Court's mistake or carelessness. That the petition of the petitioner has brought to light the Court's mistake or carelessness is an accident. Such mistake or carelessness might have been detected by the Court in other ways too. And the Court is setting aside the sale suo motu, acting on the principle that no litigant shall suffer for the Court's mistake or carelessness. That the petition of the petitioner has brought to light the Court's mistake or carelessness is an accident. Such mistake or carelessness might have been detected by the Court in other ways too. That does not make the sale set aside at the instance of the petitioner. So, this contention fails too. ( 17 ) I have considered the matter, in another way, of my own. In (5) Marudanyagam's case, all the Court and its officer had to do, in order to acquit themselves of carelessness, was to inspect the suit register in the Court's archives. The inspection would have at once shown that on the date of the sale the prior charge of Rs. 80,000 was reduced by Rs. 69,344 and that such a blatantly inaccurate statement of a prior charge of Rs. 80,000 could have had no place in the proclamation. This little was not done. Result : an indelible mark of carelessness was upon the act of the Court with the consequential substantial injury to the judgment-debtor. Ergo, the case fell within the language of Rule 90, and the judgment-debtor was not found debarred from having the sale set aside. In the case in hand, the Court had to do even less. With no physical exertion of hunting up the entries in the Court's register, it had to do a little straight thinking only, on the line every prudent man would do, in the circumstances : 'this is 1958, eleven years after the partition of the country. Land value has gone up everywhere; and more so, in the suburbs of Calcutta. And the execution-creditor is putting Rs. 300 as the value of some 13 cottahs of Paschim Barisa land within the Municipality and police station of Behala. Not far off too from our courts - the Alipore Courts. So, the valuation given by the execution-creditor, which works out at the rate of say, Rs. 23 a cottah, is an absurdity in itself. I do not accept it. I cannot. I shall enter into evidence instead under sub-rule 4, with a view to finding out what the fair valuation is, and thus save a solemn sale of the Court from the ignominy, the execution-creditor is dragging it to. 23 a cottah, is an absurdity in itself. I do not accept it. I cannot. I shall enter into evidence instead under sub-rule 4, with a view to finding out what the fair valuation is, and thus save a solemn sale of the Court from the ignominy, the execution-creditor is dragging it to. ' Therefore, be it (5) Marudanyagam's case or the case in hand, what bulks large is torpor : to avoid the little exertion of looking up a register in one, and to do a little plain thinking on having noticed the shockingly low valuation of Rs. 300 in the other. But was it noticed at all? Or, were the draft orders recorded by a clerk of the execution department (sherista as it is called) and mechanically signed? Appearances are very much in favour of that. See order No. 4, dated June 7, 1958, issuing notice under Order 21, Rule 66, and order No. 6 dated July 1, 1958, recording that the aforesaid notices have been served and issuing the sale-proclamation, with the shockingly low valuation of Rs. 300 for sale on August 13, 1958 - orders written by one (not to dictation) and signed by the Judge. With regret, therefore, I have to reiterate the charge of the executing Court having acted blindly on such crucial matters. ( 18 ) ANOTHER feature in (5) Marudanyagam's case remains to be noticed. The Subordinate Judge did not find fraud against the execution-creditor. Nor did he find knowledge on the part of the petitioning judgment-debtor requisite to found a plea of waiver on the question of the prior charge of Rs. 80,000 having been reduced by Rs. 69,000 odd by the time the sale was held. With these findings, the High Court did not disagree. And their Lordships of the Privy Council saw reasons for suspecting that the mortgagor judgment-debtor might have known more about the dealings with his property in the prior mortgage suit than he was prepared to admit. No less did they see reasons equally cogent for suspecting that the mortgagee execution-creditor was in like case. But they saw nothing which would justify the Board in disregarding the findings of fact by the Subordinate Judge. They directed the sale to be set aside. No less did they see reasons equally cogent for suspecting that the mortgagee execution-creditor was in like case. But they saw nothing which would justify the Board in disregarding the findings of fact by the Subordinate Judge. They directed the sale to be set aside. They directed so, because of the serious undervalue occasioned by failure on the part of the Court, and of the decree-holder, to carry out their obligations under Rule 66 and the resulting substantial injury to the judgment-debtor. ( 19 ) THUS, the basis of the decision is here. Failure by the Court and the decree-holder to do their duty under Order 21, Rule 66, causes serious undervalue. Serious undervalue causes substantial injury to the judgment-debtor. And the sale goes. But their Lordships did not pass the question of fraud on the Court by: if the execution-creditor knew the true 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. (In the extract just quoted, I have substituted execution-creditor for respondent, who was, in fact the execution-creditor, only with a view to understanding the passage better ). In the case in hand, I see fraud on the Court too (as distinguished from fraud on the party ). To tell the Court by a verified petition that some 13 cottahs of land in the suburbs of Calcutta is valued at Rs. 300, though its fair value is, in the least, Rs. 6,000, as found by the learned Subordinate Judge and interfered with, in vain, by the learned Additional District Judge, committing one jurisdictional error after another, and then to induce the Court (assuming that the Court was not blind) to accept such a ridiculously low price and to issue its proclamation so, cannot but be regarded as fraud on the Court. Fraud as this continues on the date of the sale, when the decree-holder Pasupati lies by, does not tell the Court the serious undervalue of which he is the author, and puts the first bid, and the only bid, at Rs. 348. 19 paise. See the bids recorded on the body of the sale-proclamation. Fraud as this continues on the date of the sale, when the decree-holder Pasupati lies by, does not tell the Court the serious undervalue of which he is the author, and puts the first bid, and the only bid, at Rs. 348. 19 paise. See the bids recorded on the body of the sale-proclamation. It therefore matters little that the auction-purchaser is somebody else, Kishori, and not he himself, the decree-holder, as in (5) Marudanyagam's case. It appears to be noteworthy here that the auction-purchaser soon enough relieved himself of what he had purchased in favour of the answering opposite party Binodini who, for reasons too obvious to be stated, deliberately withholds the production of the relative sale-deed at the trial. Not that I bank on it. What I bank on is suppression of the fair value by the decree-holder right up to the sale. Such suppression is fraud on the Court. And such fraud is writ large on the record. So, absence of particulars Mr. Ghosh makes a point of, on the authority of Bishnudeo Narain v. Seogeni Roy, AIR 1951 SC 280 : 1952 SCA 388, appears to be neither here nor there. And this deadly particular is not absent either. ( 20 ) ONCE fraud on the Court is there - and it is there - the Calcutta proviso to Rule 90 of Order 21 cannot enure to the answering opposite party's good. To quote Chakravartti, C. J. from (6) Manmatha Nath's case, (supra), (paragraph 7 ante) : "defect" is a weak word and could, according to its ordinary connotation, cover only omissions, irregularities or deficiencies but not also a fraudulent suppression or distortion of facts. Most respectfully, I adopt this, and hold that if I regard the sale being set aside at the instance of the petitioning judgment-debtor who after notice did not attend the drawing up of the sale-proclamation, the sale is being set aside not on the ground of any defect in the proclamation, but on the ground of fraud on the Court. This is my comment on the expression : any defect in the proclamation, a comment I reserved in paragraph 16 ante. So, the Calcutta proviso to Rule 90 does not reach the case in hand. This is my comment on the expression : any defect in the proclamation, a comment I reserved in paragraph 16 ante. So, the Calcutta proviso to Rule 90 does not reach the case in hand. ( 21 ) (6) Manmatha Nath's case shows a remit directed by this Court on the concession on behalf of the decree-holder, no less on the state of findings on records, that the two Courts below looked at the matter "from the post-sale angle of vision", not from the pre-sale angle of vision. That cannot be said of the Courts below in the case in hand. The pre-sale angle of vision is to be seen here. So, no remit appears to be called for; the more so, as the execution-creditor verified the valuation of Rs. 300 to be true to his knowledge. No evidence is needed - and, therefore, no remit is needed to - to convince a prudent man of the falsity of such verification. No man in his senses could have said that, in 1958, the value of some 13 cottahs of Paschim Barisa land in the suburbs of Calcutta was Rs. 300. ( 22 ) THE last attempt Mr. Ghosh makes, to turn the corner, is to rely on Baswali Sheikh v. Matangi Charan Ghose, (1956) 61 CWN 468, where property valued at Rs. 6,000 was valued in the proclamation at Rs. 50 only and sold for Rs. 161-3 annas, and Bachawat, J. , sitting singly, regretted his liability to interfere on the ground that the deliberate fund (which his Lordship had found) from gross undervaluation could not by itself be regarded as fraudulent concealment within the meaning of Section 18 of the Limitation Act 9 of 1908. His Lordship looked at the matter from the standpoint of fraud on the party - in which case Section 18 was bound to cast its shadow. I am, however, looking at the matter from the standpoint of fraud on the Court and the standpoint of the Court's inexcusable carelessness - in either of which case limitation cannot show its head. In Marudanyagam's case the application under Order 21, Rule 90, was barred by 53 days. (See paragraph 9 ante ). And the way I am looking at the matter is the way approved by the Privy Council in Marudanyagam's case and the Bench decision of this Court in Manmatha Nath's case. In Marudanyagam's case the application under Order 21, Rule 90, was barred by 53 days. (See paragraph 9 ante ). And the way I am looking at the matter is the way approved by the Privy Council in Marudanyagam's case and the Bench decision of this Court in Manmatha Nath's case. That is enough for me. On the point whether or no Bachawat, J. 's decision requires reconsideration, I say, as Laik, J. said in Bipin Behari Baidya v. Surya Kumar Jana, (1962) 67 CWN 1072, that may be dealt with in an appropriate case. So, this last attempt fails too. ( 23 ) IN the result, the rule succeeds and be made absolute. The order of the Additional District Judge be set aside and that of the Subordinate Judge be restored, save that, since one of the findings come to is that the Court is setting aside the sale suo motu, each party do pay and bear its costs throughout. Rule succeeds and be made absolute