JUDGMENT - Tulzapurkar, J.

1. This appeal in execution proceedings raises an interesting question as to whether if no notice under Order 21 Rule 66 (2) of the Code of Civil Procedure is served on the judgment-debtor, are the subsequent proceedings resulting in a sale void or voidable. Since on this question there is a conflict of opinion not only among the various High Courts in the country but even between the two learned Judges of this Court, the appeal has been referred to this Division Bench.

2. The few facts giving rise to the appeal preferred by the heirs of the original decree-holder may be stated. A final decree for partition of joint family properties was passed on 25th of July 1962 in Special Civil Suit No. 77 of 1948 and under the decree inter alia, defendant No.3 one Haribhau, was directed to pay Rs. 29,041.85 to defendant No.1 Ramchandra, Haribhau died on 21-7-1964 leaving behind him three sons, Gajanan, Shamrao and Anandrao (respondent No.1). On 14-10-1964 the decree-holder Ramchandra filed an execution application, being Special Darkhast No. 85 of 1964 for realisation of the amount of Rupees 29041.85 and certain immovable properties, being 1/2 share in three plots of land that had been allotted to deceased Haribhau under the decree, were got attached and the decree-holder prayed for sale of the same. On 26-4-1965 the executing Court ordered sale of attached properties under Order 21, Rule 64 and also directed a notice under Order 21, Rule 66 (2) being issued to the heirs of the deceased judgment-debtor Haribhau. Notices were admittedly served on Gajanan and Shamrao in July 1965 but there is a controversy whether it was served on Anandrao, the third son, (respondent No.1) or not. However, the proclamation was settled by the Court on 18th November, 1965 and on 6th December, 1965 the Court issued warrant of sale and proclamation. Eventually the properties were sold by a public auction on 19-4-1968 and it was knocked down to respondent No.2 as the highest bidder of Rs. 23,350/-. On 16-5-1968 Gajanan and Shamrao filed an application being Misc. Application No. 111 of 1968 for setting aside the sale on certain grounds but that application was dismissed sometime in December, 1970. Thereafter on 24-3-1971, that is, nearly two years and eleven months after the auction sale had taken place. Anandrao (respondent No. 1) filed an application being Misc. Civil Application no. 61 of 1971 under Order 21, Rule 90 read with Section 47 of the Code of Civil Procedure for setting aside the sale on the ground that notice under Order 21, Rule 66 (2) had not been served upon him. Ramchandra having in the meantime died his heirs (the present appellants) opposed the application on the ground that notice under Order 21, Rule 66 (2) had been served on Anandrao and also on the ground that the application was barred by limitation. It was contended by them that assuming that notice under Order 21, Rule 66 (2) was not served upon Anandrao, it was a mere irregularity in publishing and conducting the same and as such the application fell under Order 21, Rule 90 and ought to have been filed within 30 days from the date of the auction under Art. 127 of the Limitation Act, 1963 and as it was filed more than 2 years and eleven months after the sale it was barred by time. The auction purchaser (respondent No.2) also resisted the application and supported the contention of the heirs of the original decree-holder. Without deciding the factual question as to whether notice under Order 21, Rule 66 (2) had been served on respondent No. 1 or not, the executing Court decided the point of limitation as a preliminary point. Two decisions of this Court were cited before the learned Judge; one in the case of Dada Narayan v. Jaichand, 60 Bom LR 380 which has taken the view that such sale without service of the notice under Order 21, Rule 66 (2) is null and void and that the application falls under Section 47 and would be governed by Art, 137 of the Limitation Act

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