Non-service of notice under O. 21, R. 66 (2), is an irregularity in publishing and conducting an execution sale.

ORDER OF REFERENCE

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.

2. 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 as 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 under section 47 Civil Procedure Code, 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 Civil Procedure Code.

(c) The third judgment-debtor died on 5th June 1947, and

(i) His wife who is entitled to half the share of his property under the Hindu Married Womens 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 Surampalli 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 Kakinada, East Godawari District and it is outside the territorial jurisdiction of the Honble Court and the said sale is illegal and therefore, null and void."

3. Under Order 21 rule 90, the appellant was directed to furnish security and, as he had failed to do so, the application was dismissed.

4. Learned counsel for the appellant contends that so far as grounds (b) and (d) are concerned, they fall under section 47 Civil Procedure 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 under section 47 but contends that ground (b) is covered by Order 21 rule 90. The relevant provisions may be read :

"Order 21 R. 90 - Where any immoveable property has been sold in execution of a decree, the decree holder or any person entitled to share in a rateable 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."

5. Order 21, R. 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 th