(e) Trees and growing crops are not moveable property. Tofail Ahmad v. Beni Madhub Mookerjee. S. W. R. XXIV. 394, A suit for the recovery of mortgaged debt by the sale of the mortgaged property is not a suit for land. A Court may decree the sale of mortgaged immoveable property though situated beyond its jurisdiction. Yentrohu Balshet Kasar v. Rambhaji Valad Arjun Bom. H. C. IX. 12. Where an estate, or share in an estate, not severed for the purposes of revenue, is under attachment by order of a Civil Court in execution of a decree, such estate or share cannot, under section 5 of Act XI. of 1859, be sold for arrears of revenue without the notice required by sec. 5 of that Act. The words "arrears of estates under attachment" are not confined to estates the whole of which is under attachment. The appointment of a surbarakar or manager by a Court does not supersade an attachment. Banwaree Lall Sahoo v. Mahabeer Prashad Singh, L. R., I. A., 1. 89, A judicial sale transfers to the purchaser the property of the judgment-debtor against the debtor's will, and places the purchaser in a higher position than that which the judgment-debtor, by any private alienation, could confer on him. Such a purchaser is competent to defend his possession and title, by showing that the charge which it is sought to establish against the estate is fraudulent and collusive, and therefore void. Oomrao Singh v. Shimboo Nath, N. W. P. 1870, 38. Where a decree for a bond provides for sale The decree-holder can get at the property An essential element in such arrangem ent The following rules are to be observed hence- II. The execution-creditor, or his pleader, III. If the creditor object and the objection VI. No person should be appointed mana- VIII. Whenever application is made by subsequent or other judgment-creditor for the attachment and sale of property already under management, the Court should call upon the judgment-debtor to show cause why such property should not be sold, and to give notice of such application to all previous attaching creditors; and unless it can be shown that, regard being had to all execution claims upon the property, or against the judgment-debtor, the management can still be properly continued, such property ought then to be brought to sale, the earliest attaching creditor being of course entitled to the benefit of sec. 270. IX. Any execution creditor who has attached the property under management may at any time apply to the Court to put an end to the management, and such application should be duly considered. C. O., 1871. 19, July 11th, ib. U. C. O. C. H. C., 58-61. To save a particular property from sale, a judgment-debtor must show the value and condition of other properties in her possession, and the Judge must consider how and by what arrangement such disposal of different portions of such property may be made, so as to avoid the sale of the property already attached. Deb Kumari Bibi v. Ram Lal Mukarji, B. L. R., III. App., ¡107; S. W. R., XII. 66. Luch No authority is hereby given to a Court to give a lease; it is only empowered to give the judgment-debtor time. miput Dugur v. Maharajah Jugut Sadur Tewari, ib. 1864, Mis. 5. This section cannot be used so as to keep property under attachment in order to satisfy any future sum which may fall due under a decree, and in payment of which default may occur. Ramdhan Mitter v. Kailas Nath Dutt, B. L. R., IV. A. C. 20; nor is it intended to give Courts, for an indefinite length of time, the management of the encumbered estates of the country or to compel decree-holders to submit to such an unreasonable delay as fifteen or twenty years before obtaining satisfaction of their decrees. Rednun Atchubaranajga v. R. M. Amikhan, Mad H. C., V. 272. The fact of the judgment-debtor's possessing properties other than the one attached, is no ground for rejecting an application under sec. 305, Act X. of 1877, for the appointment of a manager. Debkumari Bibee v. Ram Lall Mookerjee, B. L. R., III. 4pp., 107; S. W. R., XII. 66. When property has been put up for sale at auction in execution of a decree, and bids have been bonâ fide made for it, the Court is not competent to postpone the sale, or to decline to conclude it, and order another auction. merely on the representation of the judgment-debtor that he can obtain a higher price by private transfer, there being shown no ground to believe that the amount of judgment-debt would have been thus realized. Baboo Luchmee Narain v. Baboo Bhyroo Parshad, Agra Rep, I. Mis. 11. (g) These deposits are not to be placed in Government Savings Bank. Panj. C.O. B. C., V-668 of 1875. (h) See notes, sec. 293. (i) It is clear that the purchaser at the sale, quoad purchaser, cannot come in under this section, but the use of the words "any person whose immoveable property is being sold" seems wide enough to admit third parties with interests in the property under sale. The question, however, is very doubtful; under the old Code, when a mortgagee of two properties, M. and P., obtained a decree under which both were attached and lotted for sale, P. to be sold first and M. afterwards, and on the application of the judgment-debtor, M. was sold first, and P. afterwards; after the sale a person who claimed under a conveyance by the owner, subject to A.'s mortgage, applied to set aside the execution sale as irregular, but was not allowed to come in. Jogeenarain Singh v. Bhugbano, S. W. R., Mis. II. 13. The Bombay High Court ruling, Krishnara V. Venkatesh, Bom, H. C., XI. 15, would let in any person who has sustained substantial injury; but still it must, of course, be qualified by the words of the Act quoted above. In that case it was further held that, although the applicant was creditor for a sum less than Rs. 5,000, still, as the sale took place in a suit for a sum above Rs. 5,000, an appeal lay to the High Court. The Court executing the decree must try the validity of the objections. Ganesh Lal Tewari v. Rani Bindu Vashini, ib. XXIV. 85. (j) The material irregularity must have resulted in substantial damage to the applicant, otherwise it will form no ground for setting aside the sale. Subject to this qualification, the following may be considered such irregularities; and when they are urged, it is the bounden duty of the Court to take evidence and determine whether the irregularity has been material, and the damage resulting from it to appli cant substantial: (1) The fact of an execution sale having taken place about two hours earlier than the hour announced, and bidders having thus been prevented from attending. Khodeja Bebee v. Ram Narain Dass, ib. XII. 511. (2). Without attachment and notice of sale Co-sharer of a share of undivided estate sold in execution to have preference in bidding. 310 (14 Act 23, 1861.) When the property sold in execution of a decree is a share of undivided immoveable property, and two or more persons, of whom one is a coharer, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the co-sharer. (k) Sale of land not set aside unless in case of substantial 311. (256) The decree-holder or any* () person whose immoveable property has been sold under this chapter may apply to the ground of set aside the sale on the Court to a material irregularity (1) inf publishing) or ‡conducting it; but no sale shall be set aside on the ground of irregularity unless the applicant proves to the satisfaction of the Court that he hassustained substantial injury by reason of such irregularity. 312. (257) If no such application as is mentioned in the Effect of objection being last preceeding section be made, disallowed and of its being or if such application be made and the objection be disallowed, the Court shall pass an order (m) confirming the sale as regards the parties to the suit and the purchaser. allowed. If such application be made, and if the objection be allowed, the Court shall pass an order setting aside the sale No suit to set aside on the ground of such irregularity an order passed under this section shall be brought by the party against whom such order has been made. Power to apply to set aside the sale. 313. The purchaser at any such sale may apply to the Court to set aside the sale, on the ground that the person whose property purported to be sold had no saleable interest therein, and the Court may make such order as it thinks fit; provided that no order to set aside a sale shall be made, unless the judgment-debtor and the decree-holder have had opportunity of being heard (n) against such order. Confirmation of sale. 314. (256) No sale of immoveable property shall become absolute until it has been confirmed () by the Court. If sale set aside, price to be returned to purchaser. 315. (258) When a sale of immoveable property is set aside (1) under section 312 or 313. or when it is found that the judgment-debtor had no saleable interest in the property which purported to be sold, and the purchaser is for that reason deprived of it, the purchaser shall be entitled to receive back his purchase-money (q) (with or without interest as the Court may direct) from any person to whom the purchase-money has been paid. having been duly issued and published. (the Judge was wrong in rejecting this objection simply on the strength of a petition, put in two days previously by an agent of the judgment-debtor, which was silent in the matter of the above allegation). Kalee Sahai v. Mukkhon Lal, ib. XXIV. 216. The onus probandi rests on the plaintiff to prove an allegation of fraud; mere irregularity in the issue of processes will not of itself prove fraud, even where the auction bids are so small as to excite suspicion. Musst. Bibi Kubeerun v. Musst. Bibiufechun, ib. XXIV. 288. (3). Want of local jurisdiction in a Court which sold a village. (This must be found in fact and law before sale can be set aside), Munshi Muhammad usheed Khan v. K. M. Debia, ib. XXIV. 443, (5) Sale on a holiday, whether fixed or a day on which Courts are closed by order of the High Court. Haro Jamadar v. Jadub Chandar Haldar, ib. III. Mis. 24. (6) Where property is advertised to be sold in execution, a change in the specified programme, without notice to intending bidders, or the express consent of the judgment-debtor, Pokhraj Singh v. Gossain Munraj Pooree, ib. XII. 281. (7) Where certain properties (factories and lands) were numbered separately in the lothundee of sale, an irregularity was held to have been committed by their being sold in a lump. Urquhart v. Ñundeeput, ib. XII. 492. A default under sec. 293 is not an" irregularity in conducting the sale" Binda Debee Dassee v. Gopee Soondery Dossia, ib. Mis. VI. 82. Judgment-debtor must prove that the irregularities led naturally to dimunition in price before he can set the sale aside. Sheo Prokash Misser v. Hurdeo Narain, ib. XXII. 550. When a sale in execution is set aside, no such rights and interests are left to the purchaser as can be sold on his behalf. Syud Muhammad Afzul v. Kanhya Lall, ib. 42. The reversal of a putnee at the suit of one sharer is sufficient for the interests of the other sharers. Tarinee Prosad Ghose v. Banee Madhub Panday, ib. II. 248. A sale by the second attaching creditor cannot be set aside at the suit of the first, who, after attachment, delayed to proceed to a sale Mokunt Nanuk Bakhsh v. Koonwur Roy, ib. 62. The irregularity must be one committed at sale and not one afterwards. Brinda Debi Dasiv. Gopi Sundari Dasi. Wym Rep. II. 219; S. W. R., VI. 82. The irregularity should be inquired into first, and then the question of damage. Musst. Parbati v. Girdhari Lal, ib. VI. Mis, 125, An order of postponement invalidates a notification of sale even though such order may arrive the day after the sale, Nonidh Singh v. Musst. Sohun Kooer, N.-W. P., 1872, 125. If a sale be wrongly set aside, the sale of the same property by a second Court becomes inoperative, Mad. H. C., VI. 360. Nor would the Calcutta High Court allow an objection by a representative. that he had obtained nothing by inheritance, as an irregularity under this section. Chaudhri Sheikh Wahid Ali v. Musst. Jumaye, S. W. R., VI., Mis. 116. This section does not affect suits brought (1) to set aside a sale on the ground that the decree was satisfied before the sale took place. Abdul Hye, v. Nowab Raj. Wym R., V. 206; S. W. R., 1X. 196; (2) nor to fraud vitiating the sale in toto. Umbika Churun Chuckerbutty v. Dwarkanath Ghose, ib. VIII. 506. A sale is not cancelled merely because the decree on which it proceeds has been set aside. Pari Moni Dasiv. Collector of Beerbhoom. ib. VIII. 300; see also B. L. R., I. (A. C.) 84. Where a sale was fixed for the 20th November, but delayed until the 22nd without any order of postponement, or any fresh proclamation of the day of sale, there is a prima facie case of injury to the party whose property was sold. Sawal Singh v. Mukhun Pandey, N. W. P. 1870, 143. (k) A shareholder in one patti of a pattidari estate is not a "stranger" with reference to a shareholder in another patti of the estate, within the meaning of that term in this section. The auction purchaser at a sale in execu. tion of a decree of a share in a pattidari estate seeking to establish his right as against a person whose claim to the right of pre-emption under the provisions of this section, has already been allowed, and in whose favour the sale has been confirmed, cannot maintain a suit for possession of the share, but should sue for a declaration that the person claiming the right of pre-emption has no such right and to set aside the sale. See Tasuduk Ali v. Muksud Ali, H. C. R., N.-W. P., 1874. 272 ;Dabee Parshad v. Bisheshur Parshad ingh, ib. and Shib Sahai v. Thika Ram, ib. 1875. 97 Farzand Ali v. Alimullah. I. L. R., I. 272. (7) See the case of Lamb v. Bigay Kishen Das, M. I. A., VIII. 427, where it had not been made out to the satisfaction of the Court that there was any town or village within the pargana at which notice could have been given, and the posting of the notification at the principal judgment-debtor's house was not, ❤ S. 254. + S. 276. The repayment of the said purchase-money and of the interest (if any) allowed by the Court may be enforced. against such person under the rules provided by this Code for the execution of a*decree for money. Certificate to purchaser of immoveable property. Certificate to state name of actual purchaser. 316. (259, 260) When a sale of immoveable property has become absolute in manner aforesaid, the Court shall grant a certificate (r) stating the name of the person who, at the time of sale, is declared to be the purchaser and the date of such sale. Benami purchaser not recognized. 317. (260) No suit shall be maintained (s) against the certified purchaser on the ground that the purchase was made on behalf of any other person, or on behalf of some one through whom such other person claims. (t) Nothing in this section shall bar a suit to obtain a declaration that the name of the certified purchaser was inserted in the certificate fraudulently or without the consent of the real purchaser. (u) 318. (263) When the property sold is in the occupancy Delivery of immovcable of the judgment-debtor or of some property in occupancy of person on his behalf, or of some person judgment-debtor. claiming under a titlefcreated by the judgment-debtor subsequently to the attachment of such property, and a certificate in respect thereof has been granted under section 316, the Court shall, on application by the purchaser, order delivery to be made by putting the purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. (v) 319. (264) When the property sold is in the occupancy Delivery of immoveable property in the occupancy of tenant. of a tenant or other person entitled to occupy the same, and a certificate in respect thereof has been granted under section 316, the Court shall order delivery thereof to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and proclaiming to the occupant by beat of drum or in such other mode as may be customary, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser. (w) 320. The local Government may, with the sanction of the Power to prescribe rules Governor-General in Council, defor transferring to Collector clare by notification in the official Gazette that in any local area the execution of decrees in cases in which execution of decrees sale of a Court has ordered any immoveable property to be sold, |