A sale held without notice to the judgment debtor goes to the root of the jurisdiction of the Court and such a sale being a nullity, an application for setting it aside would fall under Section 47 of the Code of Civil Procedure and not under Order 21, Rule 90 thereof.

1. This is a judgment-debtors appeal from an order arising out of execution proceedings.

2. The decree-holder Yeshwantrao (respondent No. 2) obtained a decree for money against the appellant. In execution of that decree occupancy field No. 129 of mouza Chichala, tahsil Wardha, was attached and was eventually sold; the auction-purchaser thereof being respondent No. 1. The auction sale, it may be mentioned, was held on 17-3-1952 and was confirmed on 12-4-1952. On 24-6-1952, the appellant made an application under Section 47 of the Code of Civil Procedure on the ground that the sale was effected without service of notice on him under Order 21, Rule 66 (2) of the Code. The appellant also stated in that application that though notice of sale was ordered to issue to him by the Court it was actually not served on him though the process-server had made a false report to the effect that the appellant had refused to accept the service. The executing Court upheld the appellants contention and set aside the sale.

3. In appeal, the learned Additional District Judge, Wardha, held that the application of the appellant fell within Order 21, Rule 90 and that as it has not been made within thirty days of the date of sale it was barred by time. The question therefore is whether the application of the appellant was under Order 21, Rule 90 or was under Section 47 of the Code of Civil Procedure.

4. It has been held by Bose J. (as he then was) in Narayan v. Ramchandra, ILR 1947 Nag 794: (AIR 1948 Nag 177) (A), that holding a sale without notice to the judgment-debtor goes to the root of the jurisdiction of the Court and that such a sale being a nullity an application for setting it aside would fall under Section 47 of the Code and not under Order 21, Rule 90 thereof. This decision is sought to be distinguished on behalf of the respondents by Shri Mangalmurti on the ground that in the case before Bose J. no notice had at all been issued whereas in the present case notice had been ordered to be issued though perhaps it was not served on the appellant. He further says that even according to the appellant the process-server had committed a fraud in making a false report of the service and that therefore this matter would fall under Order 21, Rule 90 and not under Section 47 of the Code. In support of his contention Shri Mangalmurti relies on the well-known decision in Malkarjun v. Narhari, ILR 25 Bom 337 (PC) (B), and says that it is the issue of notice which gives jurisdiction to the Court and that once the Court gets jurisdiction over a certain matter it does not lose it merely because notice is not duly served. In the case before their Lordships of the Privy Council what was being construed was a provision corresponding to Order 21, Rule 22 of the Code of Civil Procedure, whereas what fell to be construed in the instant case was Rule 66 of Order 21. Dealing with this matter Bose, J. has observed at pages 798-799 as follows :

"Order 21, Rule 22, which deals with what one might term the initial issue of notice on an execution application, after stating as a general rule that notice shall be issued (the language is mandatory) goes on to make certain exceptions. One of them is contained in the proviso to Sub-rule (1) and the other in Sub-rule (2). I can hardly think the rule would have been couched in this form if notice had not been considered a vital matter, and this is particularly so since, in the opinion of the Privy Council, it is opposed to natural justice to try an issue without affording the other side an opportunity of being heard. See Balakrishna Udayar v. Vasudeva Ayyar, ILR 40 Mad 793 at p. 799: (AIR 1917 PC 71 at Pp. 73-74) (C). Therefore, it seems that, in genera], where the Code prescribes for the issue of notice, and particularly where it uses mandatory language, it does not envisage the possibility of its directions being disregarded except when it makes express provisions in that behalf.

Now when we turn to Order 21, Rule 66,