JUDGMENT 1. THE judgment-debtor put in an application according to the provisions of section 47 read with Order 21 Rule 90 of the Code of civil Procedure for setting aside the sale held on 29-3-1974 on the ground of material irregularity and fraud in publishing and conducting sale. His case is that the decree-holder opposite party no. 1 obtained a decree against him. In execution of that decree, his alleged one fourth undivided share in the family dwelling house at 29, Creek Lane, calcutta, was put up to sale. He suffered substantial injury thereby. The application was opposed by the decree-holder as well as by the auction purchaser opposite party. The learned Judge of the City Civil Court disbelieved the petitioner's version and dismissed the case. Hence the appeal. 2. MR. S. C. Mitter appearing on behalf of the appellant has contended that the decree holder is guilty of fraud and material irregularity in publishing and conducting the sale. There was a deliberate mis-description of the property. The valuable property located near the Dental College and N. R. S. Hospital was sold for a paltry sum of rs. 26,500/- in auction. His client suffer irreparable injury. The records of the case clearly demonstrate that the decree-holder is guilty of fraud and material irregularity. Hence the Court should set aside the sale. He has referred to the cases reported in A. I. R. 1963 punjab 230 and A. I. R. 1966 Mad. 84 and contended that in view of the decree-holder's aforesaid conduct, the court should set aside the sale suo motu. Mr. B. C. Dutt, learned advocate on behalf of the auction purchaser o. P., has contended that there was no material irregularity or fraud. At all events the petitioner did not suffer substantial injury. He has referred to the case in L. R. 20 LA. 176 to support that contention. It has also been contended by him that the Court should not ignore the judgment-debtor's conduct, because he tried his level best to thwart the execution proceeding. He did not raise any objection when the sale proclamation was drawn up. The cases reported in 32 C. W. N. 309, 50 C. W. N. 266, A. I. R. 1964 S. C. 1300, A. I. R. 1971 s. C. 2337, 1976 (1) S. C. C. 712, A. I. R. 1971 Cal. He did not raise any objection when the sale proclamation was drawn up. The cases reported in 32 C. W. N. 309, 50 C. W. N. 266, A. I. R. 1964 S. C. 1300, A. I. R. 1971 s. C. 2337, 1976 (1) S. C. C. 712, A. I. R. 1971 Cal. 203 and 76 C. W. N. 368 have also been relied on by him. He has contended that the judgment-debtor was in the know of the entire thing. He put in several applications to delay and obstruct the execution proceeding. In that view of the matter, the Court should unhesitatingly hold that the judgment-debtor did not suffer any substantial injury. 3. THE learned Advocate appearing on behalf of the decree holder supported Mr. Dutt. So, the first question arises whether there was any material irregularity in publishing and conducting the sale. Reference may be made to the well-known case of the Judicial Committee in I. L. R. 20 All. 412, P. C. to show that under statement of the value of the property which is calculated to mislead bidders is a material irregularity. Let us apply the principles of law to the facts of this case. 4. IT appears from the record that when the first sale proclamation was issued on 17-9-1971, the disputed property was described as partly three-storied and partly two-storied brick-built building with the land measuring about 6 cottahs, being Premises no. 29, creek Lane, Calcutta. On that occasion, the judgment-debtor appeared, because before the sale proclamation had been drawn up according to the provisions of Or. 21 r. 66 C. P. C., a notice was given. He gave his valuation at Rs. 50,000/ -. The decree-holder's valuation was Rs. 20,000/- in regard to the judgment-debtor's 1/4 undivided share in the property in question. Tie court rightly put both the valuations in the sale proclamation. No sale was held and thus a second sale proclamation was issued. But on the second occasion when the sale proclamation was drawn up, no notice was given to the judgment-debtor. Here it will be useful to refer only to the relevant provisions of Order 21 Rule 66 C. P. C. along with its Calcutta amendment. Or. No sale was held and thus a second sale proclamation was issued. But on the second occasion when the sale proclamation was drawn up, no notice was given to the judgment-debtor. Here it will be useful to refer only to the relevant provisions of Order 21 Rule 66 C. P. C. along with its Calcutta amendment. Or. 21 r. 68 runs as follows : "66 (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 [or, where a part of the property would be sufficient to satisfy the decree such part;] b) the revenue assessed upon the estate or part of the estate, where the property to be sold is in 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 know in order to judge the nature and value of the property; provided it shall not be necessary for the Court itself to give its own estimate of the value of the property, but the proclamation snail include the estimate, if any, given, by either or both of the parties. " 5. SUB-RULE (2) of Rule 66 enjoins that the sale proclamation shall be drawn up after notice both to the judgment-debtor and the decree-holder. In this case when the sale proclamation was issued on the second occasion, it was drawn up without serving any notice on the judgment-debtor, as pointed out previously. That itself is a material irregularity. Further, the aforesaid description of the property, viz., that it was partly three-storied and partly two-storied, as embodied in the first sale proclamation, is conspicuous by its absence in its second one. From such description, the intending bidder can think that it was a one-storied building. That itself is also a material irregularity within the meaning of Or. Further, the aforesaid description of the property, viz., that it was partly three-storied and partly two-storied, as embodied in the first sale proclamation, is conspicuous by its absence in its second one. From such description, the intending bidder can think that it was a one-storied building. That itself is also a material irregularity within the meaning of Or. 21 r. 90 C. P. C. because the description was not "fairly and accurately" stated within the meaning of the sub-rule (2)Supra. So, the petitioner could rightly complain that the intending bidders were misled by such wilful mis-description of the disputed property. 6. THE learned advocate appearing on behalf of the appellant laid emphasis on the fact that when the second sale proclamation as well as the first one was drawn up, the property was already decreed in a partition suit pending in the Original Side of the calcutta High Court. Now, we cannot take any notice of this argument, because the final decree was not exhibited in this case. Moreover, it is not known whether the relevant stamp paper was put in before the final decree was drawn up. Unless that is done, there is no partition by metes and bounds in respect of the co-sharer's interest in the disputed property. The learned advocate appearing on behalf of the auction purchaser laid emphasis on the fact that the petitioner (P. W. I Satya Charan) admitted in his evidence that the staircase as well as some other portion of the property was being jointly enjoyed. This aspect of the case is not of much importance, because it has already been pointed out that the final decree was not admitted in evidence. In view of the aforesaid discussion, we are of opinion that there was material irregularity in publishing and conducting the sale. 7. NEXT, we shall take up the question of fraud in publishing and conducting the sale. In the case in l. R. 20 LA. 176 at p. 182 it has been stated that even if there is material irregularity in publishing and conducting sale, the judgment-debtor will get no relief unless he suffered substantial injury. This question of substantial injury will be subsequently dealt with. 8. NEXT case referred to on behalf of the auction purchaser is reported in 32 C. W. N. 309 at p. 311. This question of substantial injury will be subsequently dealt with. 8. NEXT case referred to on behalf of the auction purchaser is reported in 32 C. W. N. 309 at p. 311. In that case, the judgment-debtor had opportunity of preferring his objection before the sale proclamation was drawn up. This cause is clearly distinguishable, because it has already been pointed out that in. the instant case the judgment-debtor had no occasion to receive any notice that the second sale proclamation would be drawn up. Of course, the decree holder filed an application far exemption from publishing such proclamation in the local news paper, as provided for in Or. 21 r. 67 Sub-rule (2.) Only the copy of this application was received by the learned advocate appearing on behalf of the applicant. But that does not advance matters because no notice was given thereby that the sale proclamation would be drawn up. From the facts of the case, it is clear that this also was intentionally done by the decree holder. Thus, one can see that there is internal evidence of fraud and material irregularity. The case reported in A. I. R. 1964 S. C. 1300 is also distinguishable, because in that case there was waiver. This case as well as the cases in 50 c. W. N. 266 and 76 C. W. N. 368 are distinguishable because in those cases the question under section 35 of the Bengal Money Lenders Act arose for consideration. Under that section, the court has a duty to specify how much the property would be sufficient for sale to satisfy the decree. That question is not apposite in the instant case. 9. IN the case reported in A. I. R. 1371 Cal. 203 both the valuations given by the decree holder and the judgment debtor were put in the sale proclamation. In the case in 1976 (1) S. C. C. 712 low price was fetched as the property was subject to charge and mortgage, 10. IN the case reported in A. I. R. 1971 S. C. 2337, the amendment made by the Allahabad High Court was considered. Such amendment says that the judgment-debtor's objection cannot be heard unless he raised the objection against the drawing up of the sale proclamation before it had been drawn up. This point has already been emphasized previously. IN the case reported in A. I. R. 1971 S. C. 2337, the amendment made by the Allahabad High Court was considered. Such amendment says that the judgment-debtor's objection cannot be heard unless he raised the objection against the drawing up of the sale proclamation before it had been drawn up. This point has already been emphasized previously. The judgment-debtor's alleged conduct or the fact that he had received the second sale proclamation is of no avail to the auction purchaser because after it had been drawn up and served, he had no further scope to raise any objection. The learned advocate appearing on behalf of the auction purchaser relied on the provisions of Or. 21 Rule 90 along with its Calcutta amendment. That rule runs as follows :- " (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation : The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule. " 11. IT has been contended that since the judgment-debtor failed and neglected to pay and decree-holder's clues, he filed petition according to the provision of Or, 21 rule 83 C. P. C. and put in an application for stay of the execution case, the Court would not render its aid in favour of recalcitrant judgment-debtor. This also is not acceptable, because the judgment debtor had no opportunity of raising any objection to the sale proclamation before it had been drawn up. 12. This also is not acceptable, because the judgment debtor had no opportunity of raising any objection to the sale proclamation before it had been drawn up. 12. REFERENCE may be made to the well-known decision of the Privy Council in the case of M. Pillai reported in 49 C'. W. N. P. C. 292 at pages 294 and 295. Their Lordships of the Privy council were dealing with the question where the judgment-debtor took time to pay the dues. It was observed in that case that the Court had a duty to check the valuation under Or. 21 r. 66 C. P. C. and it could not accept the decree-holder's valuation blindly. This decision was considered by the Supreme court in the case of G. Prosad v. B. Ratan in A. I. R. 1963 S. C. 2593 and followed by our High Court in the case in 59 C. W. N. 1082, at page 1087, the case of Basmali v. Matangi in 61 C. W. N. 468, the case of Bepin v. Surjya in 67 c'. W. N. 1072, the case of P. Mookherjee v. P. Mookerjee in 71 C. W. N. 649, the case of Sisir v. Kanai in 74 C. W. N. 469 and J. Rakshit v. Parbati in 81 C. W. N. 357. It may be pointed out that the Court cannot be oblivious of the broad fact that the valuation of lands and buildings was rising after the partition of Bengal. This fact was taken notice of in the case of Probodh Chandra Mukherjee v. Pasupati Mukherjee in 71 C. W. N. 649. It is common ground that the decree-holder entered into an agreement with the judgment-debtor to purchase his undivided share in the disputed property for rs. 30,000/ -. It is very surprising that after entering into that agreement, he put the valuation of the judgment-debtor's undivided 1/4th share at rs. 20,000/- only on both the occasions. There was intentional understatement of valuation. That is also an instance of fraud. 13. THEN about the evidence adduced in this case. The P. W. I Satya is petitioner. He examined himself to support his version. It will be pertinent to point out that though the opposite parties filed hajira in the trial court, no evidence was adduced by the decree-holder or by the auction purchaser. This aspect of the matter is very important. THEN about the evidence adduced in this case. The P. W. I Satya is petitioner. He examined himself to support his version. It will be pertinent to point out that though the opposite parties filed hajira in the trial court, no evidence was adduced by the decree-holder or by the auction purchaser. This aspect of the matter is very important. There is no explanation of such non-examination because non-examination as a witness is the strongest possible circumstance to discredit the truth of one's case. We can refer to the well-known case decided by the Judicial committee in the case of Gurbax v. Gurdial in A. I. R. 1927 P. C. 230. Our high Court followed the decisions on several occasion, vide in the case of pran. v. Tulshi in 63 C. W. N. 258 at page 267 and Labanya v. Phanibhusan in 68 C. W. N. 611 at page 628. We can see that the evidence adduced by the petitioner is merely ex parte. In that view of the matter, we can hold that the decree-holder is guilty of fraud in publishing and conducting the sale. Here the auction sale fetched only Rs. 26,500/-in regard to the judgment-debtor's undivided 1/4th share in the disputed property. That the petitioner suffered substantial injury is thus implicit and there is internal evidence of fraud. Hence, the contention put forward on behalf of the auction purchaser and the decree holder as well cannot be sustained. The presumption that the proceedings of the Court were properly conducted has been rebutted, 14. IT may be pointed that in the cases in 59 C. W. N. 1082 of P. Mookherjee reported in 71 C. WN. 649 and of J. Rakshit in 81 C. W. N. 357 the amendment made by the Calcutta High Court in Or. 21 r. 90 was considered and still the judgment debtor got relief. The Calcutta amendment cannot stand the D. H. O. P. in good stead as there was fraud. It is not necessary to prove the auction purchaser's fraud, vide the case of Kamal v. Parbati in 64 C. W. N. 788 S. B. We, therefore, find that the judgment-debtor sustained substantial injury due to such fraud and material irregularity in publishing and conducting the sale. 15. IN fine, we may point out that the petitioner put in an application for acceptance of additional evidence under or. 15. IN fine, we may point out that the petitioner put in an application for acceptance of additional evidence under or. 411 Rule 27 C. P. C. But that application was not referred to by either side. . Hence, that application stands rejected. 16. THE appeal is, therefore, allowed. The order appealed against be and the same is hereby set aside. The application under Order 2,1 Rule 90 of the Civil Procedure Code is allowed and the sale set aside.