Judgment - Chainani, J.

1. The material facts, so far as this appeal is concerned, are these. In 1939 respondent 3 filed a suit against respondents 1 and 2 for possession of the suit property which he had previously purchased. A consent decree was passed in that suit on 24-1-1941. By the compromise, respondent 3 gave up his claim to the suit land, while respondent 1, who it appears was the contesting defendant, agreed to pay him a sum of Rs. 125 ana interest thereupon in four equal instalments, the first instalment being payable in December 1941. The decree placed a charge on the suit property and provided that in case of default in the payment of any instalment, respondent 3 could recover the amount by sale of the suit property. As the first two instalments, which fell due in December 1941 and December 1942, were not paid, respondent 3 filed a darkhast for recovering the amount of these instalments by sale of the suit property.

This darkhast was filed on 12-4-1943, that is, more than two years after the date of the decree. Order 21, Rule 22, Civil P. C., provides:

"Where an application for execution is made morethan two years after the date of the decree...... the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause ...... why the decree should not be executed against him."

No such notice was issued to the judgment-debtors, respondents 1 and 2. The Court passed an order that a sufficient part of the suit property should be sold, and transferred the papers to the Collector for carrying out the sale.

The Collector issued notices to the Judgment-debtors. Respondent 1, judgment-debtor 1, (referred to hereafter as the judgment-debtor), appeared and claimed the benefit of the Bombay Small Holders Belief Act, which was then in force. He was given time to pay the amount due from him, but as he did not do so, the property was put up for sale and sold on 12-1-1944, after duo notice to him. It was purchased by the present appellant for Rs. 170.

Thereafter the judgment-debtor again applied to the Collector to give him the benefit of the Small Holders Belief Act. The Collector gave him further time to deposit the amount due, but he failed to do so. The judgment-debtor then filed a suit for a declaration that the sale in favour of the appellant was illegal and not binding upon him. This suit was dismissed for default on 24-7-1945. The judgment-debtor made an application for setting aside the order of dismissal and restoring the suit to file, but that application was rejected on 3-12-1945. The sale was confirmed by the Collector on 29-10-1945, who then sent the papers to the Court for further action.

In the meantime, the remaining two instalments due under the decree had become due. The decree-holder, respondent 3, applied for an amendment of the darkhast, by which he sought to execute the decree for recovery of the amount of these Instalments also. The executing Court then issued a notice under Order 21, Rule 22, to the judgment-debtor. He appeared and contended that as notice under Order 21, Rule 22, had not been issued before the Collector was asked to sell the property, the Court had no jurisdiction to execute the decree, and that consequently the sale of the suit property was null and void. This contention was accepted by the Court, which accordingly declared the sale held in favour of the appellant to be void. The appellant and the decree-holder, respondent 3, appealed to the District Court, but their appeal was dismissed. The appellant has now filed a second appeal.

2. In -- Raghunath Das v. Sundar Das, AIR 1914 PC 129 (A) the Privv Council held that where a sale was held without the issue of a notice under Section 248 of the old Code, which corresponded to Order 21. Rule 22 of the present Civil P. C., the sale was void; see also the Full Bench decision of the Madras High Court in -- Rajagopala Ayyar v. Ramanujachariar, A. I. B. 1924 Mad 431 (FB) (B). The view taken i

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