TaxTMI 
TaxTMI 
1907 (4) TMI 3
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....le-proclamation at very much lower than their real prices, had been sold to the substantial loss of the Petitioners. Notice of the application was Served upon the decree-holders and auction-purchasers and the case came on for hearing on the 15th April 1905. The first witness on behalf of the applicants went into the witness-box and a question was put to him in examination-in-chief as to whether the decree-holders had published any writ of attachment or proclamation of sale in his presence. The Subordinate Judge disallowed the question on the ground that " the judgment-debtors had waived their right to object to any irregularity, etc., regarding the publication of sale, &c." The case was then postponed and taken up again on the 29th April following, when the witness who had been examined on the previous occasion was recalled. Certain questions relating to the publication of the writ of attachment and the proclamation of sale were put to the witness. What these questions were cannot be ascertained from the record; but it is stated in the order of the Subordinate Judge that he declined to permit such questions to be put as he had ruled on the previous occasion that " the Petitioners h....
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....e 15th August following. On that date again, the judgment-debtors applied for time for one month and they agreed that there was no necessity for a fresh sale-proclamation in the mofussil which might be posted up at some conspicuous place in the Court; they further undertook not to raise any objection on the ground of irregularities in the sale and of inadequacy of price, &c. This petition also was allowed and the sale was ordered to take place on the 19th September following. On the 19th September the judgment-debtors again prayed that the sale might be postponed to November and repeated their assurance that there was no necessity for a fresh sale-proclamation in the mofussil and that, in the event of sale, they would raise no objection on the ground of irregularities in the sale or of inadequacy of price & at the same time they paid Rs. 100 to the decree-holders and the sale was put off to the 28th November. On the 28th November the judgment-debtors again applied for postponement of the sale to December and stated in their application that it was not necessary to send the sale-proclamation to the mofussil, which might be posted up on a conspicuous place in the Court; they also und....
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....pplication was refused and the sale was completed. The validity of the sale was challenged in the Court below broadly on the ground of fraud, which, according to the judgment-debtors, they had not discovered till the 16th January 1905. They further alleged, first, that the writ of attachment and sale-proclamation had been suppressed, secondly, that the return of service was entirely fictitious, and, thirdly, that the properties which yielded an annual profit of at least its 40,000 had been sold for a very small price. Under these circumstances" the question arises whether there has been any waiver of their rights by the judgment-debtors and, if so, to what extent? 2. Reliance was placed by the learned Counsel for the decree-holders and auction-purchasers upon the cases of Raja Thakur Barham v. Ananta Ram Marwnari 2 C.L.J. 584 (1905)., Noorul Hossein v. Omatul Fatima 25 W. K. 34 (1875) and Girdhari Singh v. Hurdeo Narain L. R. 3 I. A. 230 (1876) to establish that the judgment-debtors had waived all their rights to question the validity of the sale and an endeavor was made to show that the terms of the petitions in the case before us are closely similar to the petitions which had ....
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....by fraud. The burden of proof of knowledge is on one who relies upon a waiver and such knowledge must be plainly made to appear. A presumption of waiver cannot be rested on a presumption that the right alleged to have been waived was known. It follows consequently that in the case before us there was no waiver of the right of the judgment-debtors to question the validity of the sale on the ground of the alleged fraud: and upon this point we agree entirely with the rule laid down by this Court in the case of Preo Lal Pal v. Radhica Prasad Pal 6 C. W. N. 42 (1901). 4. Whether there has been a waiver or not of the rights of the judgment-debtors and if so, to what extent, must depend upon the circumstances of each individual case. The existence of an intent to waive is a question of fact and the best evidence of intention is to be found in the language and conduct of the parties. No doubt, a waiver may consist of, and be proved by, an express promise or agreement declaring a purpose not to enforce a particular right; but it may also be inferred from the conduct of the parties. Whether there has been a waiver or not, is therefore a mixed question of fact and law. Whether certain alle....
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....the judgment-debtors had waived their right to the issue of such proclamation. The only part of the offer of the judgment-debtors which was therefore accepted and acted upon by the Court was the offer to waive their right to the issue of a fresh proclamation of sale if, therefore, in determining the question of waiver we guide ourselves by the rule laid down in Raja Thakur Barham v. Ananta Hum Marwari 2 C. L. J. 584 (1905)., upon which the learned Counsel for the Respondents strenuously relied, it follows, that there has been a waiver by the judgment-debtors only of their right to insist upon the issue of a fresh proclamation of sale. The judgment-debtors are consequently not precluded from questioning the validity of the sale on the ground that the writ of attachment and the previous proclamation of sale which were alleged by, the decree-holders to have been regularly issued and properly served, had been fraudulently suppressed at their instance. 5. We may further point out that if all the applications presented on behalf of the judgment-debtors are strictly construed, they show at most that the judgment-debtors waived their right to take objection on the ground of irregulariti....
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..... The principle is indispensable to the purity of its administration, it will not enforce what it has forbidden and denounced. The maxim ex dolo malo non oritur actio is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Whenever an illegality appears, whether from the evidence given by one side or the other, the disclosure is fatal to the case. A stipulation of the strongest form to waive the objection would be tainted with the vice of the original contract and void for the same reasons. Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded upon its violation." It is quite conceivable, therefore, that a Court of justice may refuse to enforce the plea of waiver when it is satisfied that the waiver is of all the rights of a person to seek the protection of a Court of justice against fraud upon the process of the Court itself. It is not necessary, however, to deal with this matter at length; because, as we have already stated, we are satisfied that there has been no such waiver on the part of the Appellants as would....