Judgment

PATHAK, J.:- This appeal by special leave is directed against the judgment of the Madras High Court maintaining that objections speacial in regard to a sale proclamation in proceedings for execution of a civil decree can be raised under Rule 90 of Order XXI, Code of Civil Procedure.

2. A civil suit by the respondent against the appellant was decreed in 1971. The attachment of the appellants property before judgment was made absolute on the date of the decree. To execute the decree the respondent filed Execution Petition No. 222 of 1972 and prayed for sale of the attached property. It was decided to put up the attached property in two lots for sale. Lot No. 1 was sold on 28th January, 1974 for Rs. 40,000/- to the respondent. Lot No. 2 was not sold for want of bidders. The sale of Lot No. 1 was confirmed by the Court on 2nd March, 1974 and full satisfaction of the decree was recorded. Subsequently, the appellant filed Execution Application No. 600 of 1974, purporting to be under S. 47 of the Code, for setting aside the sale of Lot No. 1. He claimed that the proclamation of sale and the conduct of the sale was vitiated by several irregularities. It was alleged that the proclamation was not drawn up in accordance with law, that credit had not been given for a payment of Rs. 6,000/- made by the appellant, and that there were other omissions in the sale proclamation inasmuch as it did not mention the date of auction, the tax payable in respect of Lot No. 1 and the revenue assessment in respect of Lot No. 2. It was also alleged that the reduction of the upset price from Rs. 80,000/- to Rs. 40,000/- for Lot No. 1 was improper and that as the appellant was an agriculturist entitled to the benefit of Act No. IV of 1938 he was not liable to pay interest prior to 1st February, 1972 and consequently the amount mentioned in the sale proclamation as due from him was incorrect. The application was resisted by the respondent, principally on the ground that it was not maintainable under S. 47.

3. The executing Court found substance in the complaint of the appellant and holding that the sale proclamation was vitiated by material irregularities it set aside the sale. The respondent filed an appeal, C.M.A. No. 386 of 1975, in the High Court against that order. Two other appeals were also filed in the High Court, C.M.A. Nos. 2 and 3 of 1976. They arose out of the dismissal of two applications, one for restoration of an application for possession and the other for removal of obstruction. The two applications had been dismissed as infructuous consequentially to the setting aside of the sale.

4. All the three appeals by the appellant were considered together by the High Court and, in the circumstances, the appeal against the order setting aside the sale was taken as the main appeal. The principal question determined by the High Court was whether the objection to the sale could properly form the subject of a proceeding under S. 47 or under Rule 90 of Order XXI. After examining a large number of cases on the point, the High Court held that the application for setting aside the sale lay under Rule 90 of Order XXI and not under S. 47, and therefore remitted the appeals to the executing Court for fresh consideration.

5. It seems to us that the High Court is right. It is plain that the errors complained of by the appellant amount to mere irregularities committed in settling the sale proclamation. They cannot be described as errors which render the sale void. The difference between an error which makes the proceeding void and one which makes it merely irregular has been pointed out by this Court in Dhirendra Nath Gorai v. Sudhir Chandra, (1964) 6 SCR 1001. The requirements which were not complied with in this case when settling the sale proclamation were intended for the benefit of the appellant and could be waived by him. They were not matters which went to the root of the courts jurisdiction and constituted the foundation or authority for the proceedin