A transferee from an execution purchaser is a necessary party in a proceeding to set aside the execution sale under Order 21, Rule 90, Code of Civil Procedure, and is entitled to notice of the proceeding.

1. In the suit which is the subject-matter of this appeal the defendant second party had purchased the disputed properties in an auction sale in Execution Case No. 165 o£ 1942. The execution was with respect to a money decree obtained by defendant No. 13 in Money Suit No. 52 of 1940 against the defendant first party for a refund of the consideration of a sale-deed. Defendant No. 13 obtained a decree in that suit and assigned the decree to defendant second party, who instituted the execution case.

In the course of execution, the properties were sold and purchased by the defendant second party. On 18th March, 1944, the plaintiff purchased the disputed properties from the defendant second party. It appears that on 22nd March, 1944, defendant No. 2 made an application under Order 21, Rule 90, Code of Civil Procedure, for setting aside the sale. The application was allowed ex parte on 16th June,. 1944, and the sale was set aside.

The plaintiff was not made a party in Miscellaneous Judicial Case No. 164 of 1944. He has instituted the present suit on the allegation that the order of setting aside the execution sale was not binding upon him and that he had title to the disputed properties and he is entitled to recover possession of the same. Defendant No. 2 was the main contestant in the suit. The ground upon which he contested the suit was that the plaintiff had knowledge of the execution proceeding and that the order of setting aside the sale was binding upon him. The lower appellate Court has found that, the plaintiff was bound by the order of the executing Court in Miscellaneous Judicial Case No. 104 of 1944, dated 16th June, 1944, on the ground that the plaintiff was not a necessary party to the Miscellaneous Judicial Case and also upon the ground that the sale in favour of the plaintiff dated 18th March, 1944, became effective against third parties only on 24th March, 1944, when the registration proceedings were complete.

2. In support of this appeal on behalf of the plaintiff the learned Government Advocate has submitted that the lower appellate Court has committed an error of law in holding that the plaintiff was bound by the order passed in Miscellaneous Judicial Case No. 164 of 1944. In the first place it was contended on behalf of the appellant that the plaintiff was a necessary party in Miscellaneous Judicial Case No. 164 of 1944 and notice should have been served upon him under the provisions of Order 21, Rule 92, Code of Civil Procedure, which is in the following terms ;

"92. (1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

(2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of this application has been given to all persons affected thereby.

3. No suit to set aside an order made under this rule shall be brought by any person against whom such order is made." In support of this submission learned Counsel referred to the decision of the Calcutta High Court in Menajuddi Biswas v. Toam Mandal, ILR 39 Cal 88i (A), where it was pointed out that a transferee from the execution purchaser was a necessary party to a proceeding for reversal of the execution sale, when such proceeding was commenced after the transfer had been affected.

It was pointed out by Mookeree, J. in the course of his judgment in that case that the effect of the order of cancellation of the sale was to affect the interest of the purchaser behind his back, and the elementary principle was that no person was to be deprived of Ms property in any judicial proceeding unless he had had an opportunity of being heard. In our opinion, the argument is well founde