The non-issue of notices under Order 21, Rule 22, Civil P.C., is a mere irregularity and does not affect the jurisdiction of the Court executing the decree. Sales held in execution of a decree without the issue of notices under Order 21, Rule 22, are voidable and not void.

Sinha, J.

1. These appeals have been filed by the decree-holders-auction -purchasers against the orders of the Courts below setting aside sales held on 14-12-1937 in Execution Case No. 570 of 1937 and on 10-7-1944 in Execution Case No. 216 of 1944.

2. The facts, shortly stated, are that the appellants had obtained a mortgage decree in Mortgage Suit No. 104 of 1932 against the opposite party 3rd party and the applicants respondents, who were then minors under the guardianship of Mr. Ata Hussain, Pleader, guardian-ad-litem. In the first execution case, the appellants had impleaded the applicants respondents under the guardianship of their father, and satisfied a part of their decree by sale of the mortgaged properties. As the decree was not satisfied in full, steps were taken for a money decree under Order 34, Rule 6, Civil P. C.

In that proceeding, the applicants respondents were impleaded as majors, and, in execution of the said decree, properties belonging to the applicants and their father were sold and purchased by the decree-holders appellants on the date mentioned above. It is said that the applicants Nos. 1 and 2 attained majority in 1949 and 1948, respectively, and filed the present applications for setting aside the two sales on 8-6-1950, under the provisions of Order 21, Rule 90, Civil P.C. and Sec. 47 of the Code, on the ground that the sales were void inasmuch as no notice was either issued or served upon the applicants who were then minors under the guardianship of the aforesaid pleader, and that all the notices were fraudulently sup-pressed.

3. The appellants decree-holders refuted the allegations of the applicants, and submitted that the applications were barred by limitation, that notices under Order 21, Rule 22, of the Code had been properly served on them, and that these applicants had full knowledge of the proceedings under Order 34, Rule 6 of the Code. They denied that the processes in the execution cases had been fraudulently suppressed. They also submitted that, after auction sales, the auction-purchasers had obtained delivery of possession and had been coming in possession to the knowledge of everybody concerned. It was further said that the father of the applicants had filed an application under Order 21, Rule 90 of the Code on his own behalf as well as on behalf of these applicants, but the application had been dismissed.

4. The Courts below have found that these applicants were minors at the time of the execution proceedings and they were under the guardianship of the pleader aforementioned, and that the service Of notice under Order 21, Rule 22, on their father in the one case and on the applicants themselves as majors in the other was no compliance at all with the provisions of Order 21, Rule 22, Civil P. C. In effect, they held that the notices under Order 21, Rule 22 had not been issued or served upon the applicants at all, the reason being that in the one case the service of notices upon the applicants through their father, when, as a matter of fact, a pleader guardian had been appointed, amounted to no service at all; and in the second case service on the applicants, who were then minors, as majors was equally of, no avail. The Courts below also held that the article of the Limitation Act applicable to a case of this kind, where sales were void, was 181, and the applications, having been filed within three years of the applicants attaining majority, were not barred by time.

5. These appeals were formerly heard by a learned Single Judge of this Court, who referred these cases for decision by a Division Bench.

6. Mr. Rai T.N. Sahai, learned counsel appearing on behalf of the appellants, has submitted -

(1) that the service of notices under Order 21, Rule 22 of the Code was at the most irregular, and the Courts below have erred in law in holding that there was no issue or service of notices at all on the applicants; and

(2) that, in view of the amendments of years 1936 and 1947 of Order 21,