Fazl Ali, J.This is an appeal by one of the judgment-debtors from a decision of the Subordinate Judge of Gaya dismissing his application under Order 21, Rule 90. It appears that a preliminary mortgage decree was passed in favour of the decree-holders in 1920 and it was made final some time in 1925. This decree was executed by the decree-holders and certain properties belonging to the judgment-debtors were sold in four lots. Before the sale took place a notice under Order 21, Rule 66, had been issued, but as the judgment-debtors did not appear the valuation suggested by the decree-holders was accepted and the sale proclamations were issued on the basis of such valuation. The learned Advocate for the appellant has now succeeded in showing that these valuations were inadequate; and this is also clear from the fact that the price fetched at the sale was much higher than the price noted in the sale proclamations. It may also be conceded in favour of the appellant that a gross understatement of the value in the sale proclamation would ordinarily amount to a material irregularity in publishing or conducting the sale. The question to be decided is whether the judgment-debtors sustained substantial injury as a direct consequence of this irregularity.

2. Now dealing with the various properties individually, it appears that two of them, Pinjor and Harbanspur Mairwa, were valued in the sale proclamation at Rs. 1,000 and Rs. 500 respectively, but they were sold for Rs. 15,000 and Rs. 7,500 respectively. According to the appellant however their proper respective values should have been Rs. 35,000 and Rs. 20,000. Now, so far as Pinjor is concerned, the appellant has not printed any document to enable us to check the accuracy of his valuation, but one of his witnesses, Lalbahadur Singh, has stated that the value of 8 annas share of this village which was sold was Rs. 34,000 to Rs. 35,000. It appears, however, from the judgment of the learned Subordinate Judge that before him the appellant relied upon the cess re-valuation according to which the annual income of sixteen annas is Rs. 3,095. According to certain calculations which were made in this Court by the learned Advocates appearing for the parties and in which allowance was made for collection charges and the annual cess and revenue payable in respect of this property, it was found that the annual income of the share sold would amount to about Rs. 1250 to Rs. 1,300. That being so, and having in view the fact that the properties sold at a Court sale do not as a rule fetch the same price as they might fetch at a sale arranged by private contract, I am inclined to think that the conclusion of the learned Subordinate Judge, that the property was not sold at a grossly inadequate value, is correct. As I have already stated the price fetched by this property at the sale was Rs. 15,000.

3. As to Harbanspur Mairwa the annual income of this property is, according to the cess valuation, Rs. 1,655 and the Government revenue and cesses are Rs. 572 and about Rs. 100 respectively. After deducting these amounts and the usual collection charges the income of 10 annas 5 pies which was the subject of the sale would roughly be Rs. 500, and considering that the price fetched at the sale was Rs. 7,500, that is to say about 15 times the net annual income, it cannot be held in the case of this property also that the sale resulted in a substantial injury to the appellant. As to the other two properties they stand on a somewhat different footing, because it appears from certain admissions made by the appellants own witnesses in the Court below that the equity of redemption, or whatever interest the judgment-debtors had in these properties, had already been sold previous to the date of the sale with which we are concerned. According to Lalbahadur Singh the fourth witness for the appellant, Saidpur mahal had been sold in execution of a decree obtained by one Jagmohan and purchased by the decree-holder or his wife two or three years before the sale and again according to another witness, examined on behalf of the appellant, Kharrah Rahimabad had been sold in execution of a decree for cess. Considering that the judgment-debtors had no interest left in these properties at the date of the sale, or at the utmost they had a doubtful claim only in respect of these properties, it cannot be said that the appellant was materially prejudiced by the sale of these properties, especially when the price fetched was, as held by the learned Subordinate Judge, though low, not grossly inadequate in the case of these properties also.

4. Another point which requires consideration in deciding this case is that the total decretal amount for which execution was taken out was according to both the parties between Rs. 75,000 and Rs. 1,00,000 and the price fetched by the sale of these properties was a little over Rs. 44,000. The decree-holders do not propose to levy any further execution in respect of the amount of the decree which remains unsatisfied and so we cannot overlook the fact that even if the properties had been sold for the full decretal amount, it would not have materially altered the position of the parties. In these circumstances I am of opinion that the appellant has failed to make out a case for setting aside the sale and the decision of the learned Subordinate Judge must therefore be upheld. Apart from the contention that the sale was liable to be set aside by reason of material irregularities resulting in loss to the appellant, it was contended by the learned Advocate for the appellant, the execution proceedings are vitiated by the fact that the decree holder instead of taking out execution in respect of the decree as it stood after certain amendment had been made therein took out execution on the basis of the original decree as it stood before the amendment. It appears that the decree had to be amended because an objection was taken by the judgment-debtors on the ground that the suit had abated as against some of the judgment-debtors as they had died previous to the passing of the final decree and as no steps had been taken for substituting their heirs within the time prescribed by law. The effect of the amendment was that the decree could not be executed against defendants 5, 6 and 13 or their heirs and it appears that in the present execution petition the decree-holders are not proceeding against these defendants or their heirs. The learned Subordinate Judge, in holding that the execution proceedings were not affected by the slight irregularity complained of, has relied upon the decision of this Court in Misc. Appeal No. 68 of 1929.

5. It appears that the learned Subordinate Judge had previously dismissed two applications for the execution of the final decree in the mortgage suit which has given rise to these proceedings, but his order was set aside on appeal and this Court directed the execution to proceed except against the persons substituted in place of the original defendants 5, 6 and 13 who were expunged from the record. The decree-holders accordingly proceeded with the execution and they proceeded according to the directions of the High Court. In my opinion if any error was committed by the decree-holders it was not one of substance but of form and I do not think that that should be allowed to affect the legality of the present execution proceedings. Lastly, it was contended that the effect of the order of this Court was not to revive the execution proceedings and that a fresh execution petition ought to have been filed by the decree-holders after the order of the High Court. With this view however I am not inclined to agree, because this Court expressly set aside the order of the Subordinate Court dismissing the application for execution and directed the execution to proceed. The effect of the order was clearly to revive the execution proceedings by vacating the order of dismissal which had been passed by the Subordinate Judge. In these circumstances I would dismiss the appeal with costs.

Luby, J.

6. I agree.