Vepa Satyanarayanaimivlhy vs Chekka Bhavanarayana and Others

Subba Rao, C.J.—This is a Civil Miscellaneous Appeal against the order of the learned Subordinate Judge, Visakhapatnam, dismissing the application filed by the Appellant for setting aside the sale on the ground that he failed to furnish security within the time prescribed.

In execution of the decree in O. S. No. 38 of 1924 on the file of the Court of the Subordinate Judge, Visakhapatnam, the land in Allipudi, which was described us item I in the sale proclamation, was brought, to sale and purchased by the 4th Respondent. The Appellant, who is the second judgment-debtor, filed an application u/s 47 Code of Civil Procedure, for setting aside the sale on the following grounds:

(a) No amended decree copy has been filed into Court after the decree debt was scaled down in spite of the orders of the Honourable Court.

(b) There was omission of notice to the Petitioner under Order 21, Rule 66 (2) before the settlement of the terms of the sale proclamation as required by the Code of Civil Procedure.

(c) The third judgment-debtor died on 5th June 1947, and (i) His wife who is entitled to hall'' the share '' ''Of his property under the Hindu Married Women''s Right to Property Act was not brought on record:

(ii) Mr. Mulukutla Venkata Subramanyam, judgment-debtor, died and his legal representatives also were not brought on record; and

(iii) the third Respondent StmunpalH China Venkateswarlu has attained majority and he was not declared a major and the property guardian Bavirisetti Viswanatham has not been discharged.

(d) This Court has no jurisdiction to sell the property in question as the same is situated at Allipudi within the jurisdiction, of the Court of the District Munsif of Kakinadu, Kust Godawari District and it is outside the territorial jurisdiction of the Hon''ble Court and the said sale is illegal and therefore, null and void.

Under Order 21Reul 90, the Appellant was directed to furnish security and, as he had failed to do so: the application was dismissed.

Learned Counsel for the Appellant contends that so far as grounds (b) and (d) are concerned, they fall u/s 47 CPC Code, and, therefore the lower Court had no jurisdiction to ask him to furnish security, whereas the learned Counsel for the Respondents concedes that ground (d) falls u/s 47 but contends that ground (b) is covered by Order 21 Rule 90. The relevant provisions may be read:

Order 21 Rule 9-Where any Immovable property has been sold in execution of a decree, the decree holder or any person entitled to share in a ratable distribution of assets or whose interests are affected by the sale, may apply to the Court to set the sale aside on the ground of material irregularity or fraud in publishing or conducting it:

Provided that the Court may, before admitting the application, call upon the applicant either to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale ''warrant or that realised by the sale whichever is less, or to deposit such amount in court:

Provided also that the security furnished or the deposit made as aforesaid shall be liable to be proceeded against only to the extent of the deficit on a resale of the property already brought to sale:

Provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

Section 47-All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

Order 21, Rule 90, enables a person, whose interests are affected by the sale, to apply for setting aside the sale on the ground of material irregularity or fraud in publishing or conducting it. Section 47 enjoins that all questions relating to the execution, discharge or satisfaction of a decree between the parties to the suit or their representatives shall be decided, by the Court executing the decree. It constitutes the executing Court as the forum for deciding specific questions arising in connection with definite subjects between specified persons. The section propriety vi-gore does not confer a right on any person to initiate any proceeding. A person who has a right given to him under any section or order of the Code or otherwise, shall agitate the same only before the Court executing the decree, if the dispute raised falls under it. To put it differently, if the dispute raised under Order 21, Rule 90, falls u/s 47, it does not make it any the less a dispute under Order 21 Rule 90 and therefore, the conditions, laid down under that Order must be complied with. So much is conceded. It is also conceded that a dispute raised under Clause (A) does not fall under Order21 Rule 90, but only u/s 47. But it is contended that the irregularity mentioned in Clause (b) is not one in publishing or conducting the sale. Order21, Rule 64, empowers the court to order sale of property in execution of a decree. Rule 65 says that every sale in execution of a decree shall be conducted by the Officer of the Court or by such other person as the court may appoint in this behalf and shall be made by public auction in the manner prescribed. Rule 66 (1) prescribes the manner in which the proclamation of sale by public auction should be made. Under Sub-rule (2) it can only be drawn up after notice to the decree-holder and the judgment debtor. It also gives the details to be entered in the proclamation. After the making of the proclamation under Rule 67, it will be published in the manner prescribed. The subsequent rules provide a procedure for the conduct of the sale. Order 21 Rule 90 says that the sale can be Set aside on the ground of material irregularity or fraud in publishing or conducting it. If it is reintegrate, it can reason ably be argued that irregularities in publishing or conducting the sale take in also irregularities in drawing up the proclamation It can also be contended that if a proclamation is drawn without notice, it is '' an irregularity in publishing or conducting the sale, for the proclamation is fixed only as a necessary step for publishing the sale and for conducting it. But there arc: decisions of the Madras High Court taking a different view. In Neelu Neithiar v. Subramania Moothan, 11 Mad LW 59 : AIR 1920 Mad 481) (A), a Division Bench of the Madras High Court consisting of Old field and Seshagiri Ayyur JJ. made the following observation at p. 60 (of Mad LW): (at p. 481 of AIR).

That allegation is that no notice was given to Defendants 5 and 23 as required by Rule 66, Order 21, before the proclamation was settled. It was suggested that this is a matter relating to the publication or the conduct of the sale. We do not agree with this contention. There are at least three stages contemplated by B. 68. First, the settlement of the proclamation, then its publication and lastly the conduct of the sale in pursuance of it. The first of these stages is not a matter connected with the publication or the conduct of the sale. On the other hand, it is clearly anterior to both these processes.

Madhavan Nair J. followed the above judgment without discussion in (Kamana) Venkataswami Vs. Godavarti Nagayya, . Venkata Subba Rao and Madhavan Nair JJ. also accepted the view expressed, in 11. Mad LW 59 : AIR 1920 Mad 481) (A), without discussion in Meyyappan Servai Vs. Sellappa Chettiar and Others, . In AIR 1945 178 (Privy Council) , the Privy Council assumed that defects in the proclamation, such as the omission to state the revenue in certain circumstances and not affixing the sale proclamation in the Collector''s office may amount to irregularities within the meaning of Order 21 Rule 90.

The question raised is not only one of procedure but it also affects the substantial rights of parties under certain circumstances. It is necessary to have the authoritative decision of Full Bench on the question. We therefore, refer the following question to the Full Bench:

Whether non-service of notice under Order 21, Rule 66 (2) is an irregularity in publishing and conducting, the sale?

OPINION OF THE FULL BENCH

Subba Rao, C.J.

I have had the advantage of reading the. judgment prepared by my learned brother. I agree.

Bhimasankaram, J.

The question referred to us is whether I non-service of notice under Order 21 Rule 66 (2), CPC Code, is an irregularity in publishing and conducting an execution sale.

The reference has been occasioned by the decision in 11 Mad LW 59. AIR 1920 Mad 481) (A), subsequently followed in Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, ; (Kamana) Venkataswami Vs. Godavarti Nagayya, and Meyyappan Servai Vs. Sellappa Chettiar and Others, , a preliminary objection was taken as to the maintainability of a second appeal against an appellate order arising out of an application under Order 21, Rule 90. Order 43 provides for an appeal against an order under Rule 92 of Order 21 setting aside or refusing to set aside a sale under Rule 90 while Section 104 (2) precludes a further appeal from an order passed, in appeal. Disposing of the preliminary objection raised before them as to the maintainability of the second appeal, their Lordships observed as follows:

The application was by the judgment debtor to set aside the sale on various grounds. Many of them would be covered by Order 21, Rule 90. There is one allegation at least which is outside its scope. That allegation is that no notice was given to Defendants 5 and 23 as required by Rule 66, Order 21, before the proclamation was settled. It was suggested that this is a matter relating to the publication or the conduct of the sale. We do not agree with this contention. There are at least three stages contemplated by Rule 66. First the settlement of the proclamation, then its publication and lastly the conduct of the sale in pursuance of it. The first of those stages is not a matter connected with the publication or the conduct of the sale. On the other hand, it is clearly anterior to both, these processes. -Now comes the question, as this complaint against the sale is not covered by Rule 90, whether a second appeal lies. It has been held in ''Anantharama Ayer v. Kuttimalu Kovilama, 30 Mad LJ 611 : AIR 1917 Mad 924) (F) a ground for setting aside a sale may be alleged de hors Rule 90; and that such an allegation would be covered by Section 47. It was contended by the learned vakil for the Respondent, that even if the application was within Section 47, if it can also be brought under Rule 90 of Order 21, there will be no second appeal by virtue of the prohibition contained in Section 104, Clause (2) - Asimuddi Sheikh v. Sundari Bibi, ILR 38 Cal 339 (G) and Sheo Prasad Singh v. Mt. Prcmma Kuar, ILR 40 All 122 : AIR 1918 All 209)(2)(H), have taken this view. 30 Mad LJ 611 : AIR 1917 Mad 924) (F), impliedly accepts this principle. However that may be we are clear that the ground of complaint relating to the violation of Rule 66 can only be considered u/s 47. Therefore, there is an appeal and a second appeal against a decision relating thereto. We overrule the preliminary objection.

This was followed by the Divisional Bench which made the reference to the Full Bench in Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, There, Sehwabe C. J. rejecting a sanilar preliminary objection observed that he should himself have come to the same conclusion as was come to in that case, because looking at the words of Order21 Rule 90. they appeared to him perfectly plain and proceeded to say:

What is being dealt with there is a material ii regularity or fraud in publishing or conducting a sale; and I cannot bring my mind to the view that the failure to give notice of the application for leave to attach and sell is an irregularity in publishing or conducting the sale. It seems to me that it is really a contradiction. in terms. There is no sale to publish or conduct until after leave of the Court has been obtained (a) to attach the property and (b) to sell.

Whether or not that failure to give notice is an illegality, is a matter which is entirely irrelevant for the present purpose because it is only certain kinds of irregularities that are covered by Order 21. Rule 90. If the omission in this case was any other kind of irregularity, whether it renders the whole sale a nullity or not. it is not brought within the wording of that rule.

It may be pointed out that the case with which the learned Judges were dealing in Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, was one where no notice under Order 21. Rule 22, was issued and an application was made under Rule 90 of that Order to set aside the sale.. The Full Bench ruled that it was not even necessary for the Petitioner to apply to the Court to set aside the sale unless he wanted some relief of possession following upon the setting aside and that he could, "but for the provisions of Section 47 of the Code of Civil Procedure, bring a suit for possession of the property sold."

In (Kamana) Venkataswami Vs. Godavarti Nagayya, , Madhavan Nair J. overruled a similar preliminary objection basing himself on the rule laid clown in 11 Mad LW 59 : AIR 1920 Mad 481) (A). The learned Judge stated that both the objections put forward by the judgment-debtor, viz. that he had no notice of the proclamation of the sale and that there was an under-valuation or the property fell under Order 21, Rule 66, on the basis of the decision in 11. Mad LW 59 : AIR 1920 Mad 481) (A) and a second appeal was maintainable. VenUalu, Subba Rao and Madhavan Nair JJ. in AIR VSM) Mad 489 (C) applied both the earlier cases to the facts before them.

Before entering into a discussion of the line of reasoning adopted in these cases, it t is necessary to bear in mind the exact language of R. 90 of Order 21 in so far as it is material for our present purposes, it reads thus.

Where any immovable property has been '' sold in execution of a decree, the decree-holder or any person entitled to share in a ratable distribution of assets or whose interests are affected by the sale, may apply to the Court to set the sale aside on the ground of a material irregularity or fraud in publishing or conducting it:

Provided further that no sale shall be set aside on the ground of irregularity of fi-aud unless upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of. such ineinilarHy or fraud

This rule obviously deals with -what may be called a sale avoidable at the instance of the applicant on proof of material irregularity or fraud in publishing or conducting the sale and resulting in substantial injury to him. But, when there is a specific provision for attacking the validity of an execution sale one would think that there is no other way of challenging it in execution proceedings.

But as early as 1892, the Privy Council observed in Prasunno Kumar v. Kali Das, ILR 19 Cal 683 (I), as follows:

Their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of Section 244 (now Section 47) and that, when a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed the fact that the purchaser, who is no party to the suit, is interested in the result has never been held a bar to the application of the section.

In Nadamuni Narayana v. Veerabhadra Pillai, ILR 34 Mad 417 (J), it was ruled that objection to a sale in execution can only be taken in execution proceedings and Section 244 of the Code of 1882 prohibited a suit by a party or representatives against an auction-purchaser to raise a question which as between the judgment-debtor and the decree-holder must have been determined under that section. The view that an executing Court can set aside a sale on application u/s 47 of the Code and that no separate suit will lie was also expressed in Muthiah Chettiar and Another Vs. Bava Sahib and Others, and approved in 30 Mad LJ 611 : AIR 1917 Mad 924) (F).

The Madras High Court has thus consistently held that objections to an execution sale not falling within the of Order 21, Rule 90, might MM be raised u/s 47 though Section 47 has actually nothing to do with the setting aside of a sale as such, as it merely enacts that

All questions raising between the parties to the suit in'' which the decree was passed or then-representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

An application to set aside a sale, for instance, on the ground that the sale was illegal or a nullity for want of notice under Order 21, Rule 22, as in the case of Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, , or on the ground that the execution sale took place after the judgment-debtor had been adjudged, insolvent and the decree gave no charge upon the land sum as in the case of 30 Mad LJ 611 : AIR 1917 Mad 924) (P), or on the ground that such a sale was held in contravention of Order 34 Rule 14, as in the case of Muthu v. Karuppan, ILR 30 Mad 313 (L),-would fall within the terms of Section 17. In such cases, when the sale is impeached not under Order 21, Rule 90, but simply u/s 47, there is no question of proof of substantial injury to the applicant. Rut the learned Judge in 11 Mad LW 59 : AIR 1920 Mad 481) (A), while holding that such an application was maintainable u/s 47 and being of the view that the objection raised did not relate either to the publication or to the conduct of the sale (because, according to them, it related to a stage anterior to either) yet observed that on the return of the finding which they called for from the lower appellate court as to whether the decree-holder fraudulently failed to give the notice required by Order 21, Rule 66, the question of materiality of the damage and its relation to the irregularity will be considered. In making this observation, it looks as: though the learned Judges had unconsciously in mind the language of Order 21, Rule 90.

In the light of the foregoing discussion, I shall now consider the question actually referred to us. In order to do so, Order 21, Rules. 66 and 67, as amended by the Madras High Court should be read. Rule 66, in so far as it is relevant is 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 drawn up 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;

(b) the revenue assessed upon the estate or part of the estate; where the property to be sold is an 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;

(e) the value of the property as stated: (ii by the decree-holder and (ii) by the judgment-debtor; and

(f) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.

(4) For the purpose of ascertaining the matters to be specified in the proclamation; the Court may summon any person whom it thinks necessary to summon and may examine him in resnect to any such matters and require him to produce any document in his possession or power relating thereto.

Rule 67 runs thus:

(1) Every proclamation shall be published, as nearly as may be, in the manner prescribed by Rule 54 Sub-rule (2).

(2) Where the Court so directs, such proclamation shall also be published in the Official Gazette or in a local- newspaper, or in both, and the costs of such publication shall be deemed, to toe costs of the sale.

(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to publish the proclamation of sale separately'' for each lot) unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.

(4) Unless the Court so directs, it shall not be necessary to send a copy of the proclamation to the judgment-debtor.

It may be noted that in Rule 66 Sub-rule (1) there was originally the word ''made'' in the place of the present words "drawn up" which were substituted for it by Madras amendment, dated 12th November, 1952. In R. 67 apart from a change in the marginal note the words ''made and'' preceding the word ''published'' were omitted at the same time. Sub-rule (4) as it stands now was inserted by the same Court as early as 1936.

Now reading these two rules together, while it is true that in one sense as pointed out in 11 Mad LW 59 : AIR 1920 Mad 481) (A), they represent two different stages in the sale proceedings, one may observe that when Rule 90 refers to the ''publishing it'' i.e. the sale, it refers to the publication of the proclamation of the sale drawn up under Rule 66. If the proclamation is not properly drawn up, it cannot be said that there is a proper publication because it would be publication of an improper proclamation of sale. The publication of an irregularly drawn up proclamation of sale, irregular either because of want of notice or on other grounds, may thus be called an irregularity in the publication itself. It is clear that on the language of the rules quoted above, that the word "proclamation" though it may, in ordinary parlance, also convey the meaning of publication, connotes in the above context only a piece of paper containing certain information prepared by the Court. If the paper is not properly drawn up, there is no proper publication of the sale.

It may be noted that the Privy Council had held as early as the decision in Olpherts and Macnaghten v. Mahabir Pershad Singh, 10 Ind App 25: ILR 9 Cal 656 (PC) (M) that where the amount of the revenue was not stated in the proclamation as required by Section 287 of the Code of 1877 (Corresponding to the unlamented Rule 66 of present code) it was an irregularity which would only avail the applicant to set aside the sale u/s 311 (corresponding to the present Rule 90) on proof that he had sustained substantial damage by reason of such irregularity. In Bali-ram Singh v. Seth Narsingdas, 45 Mad LJ 403: AIR 1923 PC 93) (N). Lord Buckmaster observed as follows:

Under Order 21 Rule 66 of that Code, it is plain that the proclamation should contain the statement as to the -revenue assessed upon the estate, and this Board, in a case reported in 10 Ind App 25: ILR 9 Cal 656 (PC) (M), have, held that it is a material matter, and that its omission is the omission of a matter which would enable the Judgment-debtor to base an application for setting aside the sale if he could comply with the other condition that the Code provides.

Their Lordships refused to set aside the sale on the ground that the judgment-debtors upon whom it lay "to establish before the Court that they had suffered damage" did not bring forward any evidence whatever upon the point. The latest decision of the Privy Council on the point is that reported in AIR 1945 67 (Privy Council) at p. 608 :AIR 1945 PC 67 at p. 70) (O). Sir John Beaumont speaking for their Lordships remarked as follows:

Order 21, Rule 66, imposes upon the Court the duty of causing a proclamation of the intended sale to be made and requires the proclamation to be drawn up after notice to the decree holder and the judgment-debtor, and such proclamation must specify, as fairly and accurately as possible, amongst other things any encumbrance to which the property is liable........ In the present case, 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...... Their Lordships think that the subordinate Court cannot be acquitted of a measure of carelessness in not having checked this figure of Rs. 80,000 both when the proclamation was approved and when the sale subsequently took place........ The position therefore is that this sale took, place at a serious under-value occasioned by failure on the part of the Court, and of the Respondent decree-holder, to carry out their obligations, under Rule 66, and there can be no doubt, that the Appellant sustained substantial injury thereby. Their Lordships are of opinion that the case falls within the language of Rule 90.

It is true that these cases do not deal with the absence of notice provided under Rule 66, Sub-rule (2). But, in the latest Bench decision of the Madras'' High Court dealing with the scope of Order 21, Rule 90, in Vasudeva Kavu Patten v. Mani Naicka. ILR (1953) Mad 1143 at p. 1150 : AIR 1953 Mad 863 at p. 687) (P), Venkatarama Ayyar J. after a detailed reference to the relevant authorities enunciated the following proposition which, with respect, I accept subject to the qualification I shall presently mention.

The principle to be deducted from these authorities is that breaches of the provisions of the CPC relating to execution against immovable properties commencing from their attachment down to their sale should all be dealt with under Order 21, Rule 90, and not otherwise and that the order of confirmation under Order21, Rule 92, should give the final quietus to all objections which could be raised under Order 21, Rule 90.

If this view be correct, then there can be no doubt that a violation of the provisions of Rule 66 (2) is only an irregularity in the publication or conduct of sale.

I would like, however, to say, with great respect to the learned Judge, that I cannot see how an attachment could be said to form part of the process of publication or conduct of the sale. It is true that in K. Swaminatha Iyer and Another Vs. K.G. Krishnaswami Iyer and Others, , a decision, upon which the learned Judge founds himself, a Division Bench of the Madras High Court had held'' that

though attachment was a necessary preliminary to a judicial sale, a sale without attachment was not a nullity but only a material in regularity, and the purchaser''s title under such a sale could not be displaced except by resort to the statutory remedy provided by Order 21, Rule 90, Code of Civil Procedure.

But, it appears to me, with the utmost respect to the learned Judges, the decision seems to go far beyond the terms of It, 80. The terms of Rule 90 were not referred to by them. In my view, a sale cannot be said to commence until an order for sale is made under Rule 64 of Order 21. While the word "publishing" in R. 90 refers to the publication mentioned in It. 67, the word "conducting" refers back to the words "shall be conducted" in Rule 65. It seems to me that the words "conduct of sale" cannot be held to cover the anterior process of attachment. (See Ram Chhaibar Misr v. Bechu Bhagat, ILR 7 All 641 at p. G45 (R). I find myself therefore in agreement with the view expressed by Satyanarayana Rao J. in Seshagiri Aiyar Vs. Valambal Ammal and Others, , that.

Under the Code, the proceedings for sale ''start with an order for sale made by the Court executing the decree under Rule 64.

So there can be no irregularity in the publication or conduct of the sale within the meaning of Rule 90 before an order for sale is made. It is only breaches of rules that follow Rule 64 that can be characterised as irregularities appertaining to the publication or conduct of the sale.

I may point out that the absence of attachment has never been held to make a sale void, vide Velayuda Muppan v. Subramanian Chetti. 24 Mad LJ70 (T). Sivakohindu Viilai v. Ganapathi Iyer, (1917) Mad WN 89 : AIR 1913 Mad 1262) (.2) (U) and Ramasami Naik v. Ramaswaini Chetti, 17 Mad LJ 201: ILR 30 Mad 255 (V). As observed by Jackson J. in Jiliumda Moyce Burinonec v. Wooma Moyee Burmonee, 8 Suth WR 9 (W).

Attachment is a measure resorted to by the decree-holder for his own protection and the protection of purchasers of the properly to be sold, anti it consists in the case of immovable property merely" in a prohibition by the Court by which the judgment-debtor is restrained from alienating the property previous to the; sale. This, therefore, being merely a measure for the protection of the decree-holder and the purchasers of the property, the absence of it is not, it .appears to me, an objection which the judgment-debtor is competent to raise.

In Munianpa Naik v. Subramania Ayyar, 5 Mad LJ 60: ILR 18 Mad 437 (X) Muttusami Ayyar and Best JJ. observed that "the object of attachment is to take the property out of the disposition of the judgment-debtor".

In 17 Mad LJ 201: ILR 30 Mad 255 (V) it was observed that attachment is intended for the protection of the decree-holder and as Krishnan, J. points out in (1917) Mad W.N. 89. AIR 1918 Mad 1262 (2)'') (U).

When proceeding in execution have reached a stage where the objection regarding want of attachment is no longer material, the absence of attachment will not affect the concluded sale.

Even if this view be not correct, and an attachment is a necessary preliminary a sale, ''the judgment debtor, if he receives a notice under Rule 66 (2). has an opportunity of raising the question of absence of attachment. If, in the other hand there is no " attachment and no notice under Rule 66, when he may very well complain of the absence of notice under Rule 66 and on proof Of substantial injury, may get the relief provided by Rule 90. Therefore, it seems to me that the question of absence of attachment by itself is immaterial both u/s 47 because it does not make the sale void and under Rule because it cannot, in the contemplation of the Code, by itself occassion substantial injury.

In the result, my view is that, unless the matters alleged in an application for setting aside a sale are such that they would render the sale void (in which case no question of substantial injury could arise as the application falls u/s 47), it must come under Order 21, Rule 90, and can succeed only on proof of material violation of Rule 65 et set followed by proof of consequential substantial injury to the applicant. In my opinion, the answer to the question formulated for our decision should be in the affirmative.

Satyanarayana Raju, J.

I agree.

(This appeal came on for final hearing after the expression of the opinion of the Pull Bench when the Court delivered the following)

Judgment:-After the opinion given by the Full Bench on the question referred to therein, the only outstanding point is the following namely, "Whether this Court has no jurisdiction to sell the property in question as the same is situated at Allipudi within the jurisdiction of the court of the District Munsiff. KaWnada Kast Godawari District, as it is outside the territorial jurisdiction ;of the Hon''ble Court and as the said sale is illegal, and therefore, null and void."

The order of the lower Court is modified and the appeal remanded to the Sub-Court for deciding the aforesaid question. The Appellant will have to pay the costs of the Respondents.