Failure to consider ancestral property claim and sale held without following the mandate of Rule 64 of Order 21 of the Code amounted to jurisdictional error, rendering the sale null and void.

( 1 ) HEARD Sri B. R. Prasanna, learned Counsel for the revision petitioner. Notice in this petition has been issued to all the respondents.

( 2 ) RESPONDENTS Nos. 2 and 3 are served and service on them has been held sufficient. The respondent No. 2 has not appeared.

( 3 ) AN application under Order 21, Rule 72 (3) had been filed by the revision petitioners for setting aside of the execution sale. The Court below rejected the application. The applicant who had moved the application for setting aside of the sale has come up before this Court and filed the Civil Revision. That in para 3 of his objections/application u/o. 21 Rule 72 (3) CPC it has been alleged that Sy. No. 35 of Hankuni Village put for auction has been the ancestral property and it is asserted, the said property could not be put for auction. Their further plea is that if the sale is held, the minors will be put to harassment and their shares will be affected. The Execution Court rejected the application and did not decide the question whether the property subject-matter of revision petition is ancestral property. That the applicants claimed that they had the right in the said land by birth and they were entitled to separate possession and their share could not be sold. But the said question was not decided or considered and was left for being decided in the separate suit for share. The Court should have considered that aspect of the matter. But without applying his mind, prima facie, for the purpose of execution case, the Court rejected the application. A contention has been raised on behalf of the revision petitioners that for non-compliance with the provisions of the Order 21, Rule 64 also the sale itself has been null and void.

( 4 ) THE learned Counsel for the respondent contended that the really judgment-debtor had not raised this plea nor have the present applicants raised this plea before the trial Court and so this should not be considered. The learned counsel contended that the application made by the judgment-debtor has been rejected and the sale has been confirmed in 1997 and therefore this Court should not enter into the plea raised, even if it is shown to be going to the root of the jurisdiction of the Court, because once the sale has been confirmed it has become final.

( 5 ) THE point is a short one and I do not think, the proceeding should be allowed to linger. There is no doubt about the proposition of the law that jurisdiction of this Court u/s. 115 is confined to jurisdictional error. In the present case, the revision petitioners claimed interest in the property alleging that the property is ancestral property and they claimed the interest as coparceners. The plea has not been negatived by the Court. It has only said that the matter may be decided on the suit for declaration of title which has been filed. In my opinion, the Court below committed an error in not considering this question at least in the context of property, request made for execution and auction thereof. If these persons have interest, and the property of their interest have been sold in execution invalidly, the title would not pass, in respect of that share, to the transferee even in execution, because in execution, only the property and interest in property of judgment-debtor could be put to auction sale. Apart from that there is another illegality committed in the exercise of the jurisdiction by the Court while conducting the execution proceeding and in the conducting of sale, by execution court by having completely ignored provision of Order 21, Rule 64 CPC as admitted by the counsel for the respondent as well. The Court had not, before proceeding to put the property for sale or auction, considered and decided the question as to whether the decree could be satisfied by sale of a portion of the property or the entire survey number. I am informed that the decretal amount could be realised by sale of a portion of that property there was no need to make sale of e