Judgment

MITTER, J. : This is an appeal from a judgment and order of the Punjab High Court, dated December 24, 1965, on a certificate granted by the said Court.

2. The question involved in this appeal is, whether a sale of immovable property in execution of a money decree ought to bc confirmed when it is found that the ex parte decree which was put into execution has been set aside subsequently.

3. The facts are simple. One Swaran Singh obtained an ex parte decree on February 27, 1961,against Gurdial Singh for Rs.519. On an application to execute the decree a warrant for the attachment of house belonging to the judgment-debtor was issued on May 10,1961. At the sale which took place, the appellant before became the highest bidder for Rs. 5100 on December 16, 1961. On the 2nd of January 1962 the judgment-debtor made an application to have the ex parte decree set aside. On January 20, 1962, he filed an objection petition against the sale of the house on the ground that the house which was valued at Rs. 25,000 had been auctioned for Rs.5,000 only and that the sale had not been conducted in a proper manner inasmuch as there was no due publication of it and the sale too was not held at the proper hour. By an order, dated April 19, 1962. The executing Court stayed the execution of the decree till the disposal of the application for setting aside the ex parte decree. On October 26, l962 the ex parte decree against the defendant-judgment-debtor was set aside. On November 3,1962 the auction purchaser made an application for revival of the execution proceedings and for confirmation of the sale under Or. XXI, R. 92 of the Code of Civil Procedure. On November 7, 1962 the judgment-debtor filed. an objection thereto contending that the application for revival of execution proceedings was not maintainable after setting aside the ex parte decree and that the auction purchaser was in conspiracy and collusion with the decree-holder and as such not entitled to have the sale confirmed. It is to be noted here that the case of collusion was not substantiated. On August 31, 1963 the executing Court overruled the objection of the judgment-debtor and made an order under 0. XXI, R. 92 confirming the sale. This was affirmed by the first appellate Court. On Second Appeal to a single Judge of the Punjab High Court, the auction purchaser lost the day. An appeal under C1. 10 of the Letters Patent in the Punjab High Court met the same fate. Hence this appeal.

4. Before referring to the various decisions cited at the Bar and noted in judgment appealed from, it may be useful to take into consideration n the relevant provisions of the Code of Civil Procedure. So far as sales of immovable property are concerned there are some specie provisions in O. XXI beginning with R. 82 and ending with R. 103. If a sale had been validly held, an application for setting the same aside can only be made under the provisions of Rr. 89 to 91 of O. XXI. As is well known, R. 89 gives a judgment-debtor the right to have the sale set aside on his depositing in Court a sum equal to five per cent of the purchase money fetched at the sale besides the amount specified in the proclamation of sale as that for the recovery which the sale was ordered, less any amount which may, since the date of sale, have been received by the decree-holder. Under sub-r . (2) of R.92 the Court is obliged to make an order setting aside the sale if a proper application under R. 89 is made accompanied by a deposit within 30 days from the date of sale. Apart from the provision of R. 89, the judgment-debtor has the right to apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it provided he can satisfy the Court that he has sustained substantial injury by reason of such irregularity or fraud. Under R. 91 it is open to the purchaser to apply to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property