Allegations of irregularities in an execution sale, such as non-service of notices or suppression of processes, fall within the ambit of Order XXI, Rule 90 of the CPC, which deals with setting aside sales due to material irregularity or fraud, rather than Section 47, which pertains to questions relating to the execution, discharge, or satisfaction of a decree.

1. This application under Sec.115 of the Code of Civil Procedure (hereinafter referred to as the Code) by Tipan Raut, who was the plaintiff in the trial Court, is directed against the order dated the 16th January, 1974, pass-ed by the Munsif of Patna in Title Suit No. 36 of 1968, refusing to convert the petitioners suit into a proceeding under Sec. 47 of the Code.

2. This application came up for decision before L. M. Sharma, J., who, by an order dated the 27th February, 1975, was pleased to refer it to a Division Bench, and this is how it has come be-fore us for disposal.

3. In order to appreciate the points involved in this application, it will be necessary to state some material facts. The petitioner instituted the said Title Suit on the 17th February, 1968. It will be relevant to quote in extenso the Eng-lish rendering of the statements of the petitioner in Paragraphs Nos. 3, 4 and 5 of the plaint:-

"3. That no notice under Order XXI Rule 22 (C. P. C.) was, by any means, sent to the plaintiff, nor was the same served upon him. And likewise, neither processes for attachment; nor proclamation for sale was served on the spot. All the proceedings including that for fixation of value were taken surreptitiously, and the plaintiff was not at all allowed to have any knowledge of the processes. On the contrary, with the similar motive of usurping the property, the entire process, was kept secret.

4. That no drum was got beaten on the spot and because of fraud there could not be an assemblage of purchasers (bidders) at the time of auction. Due to this, the disputed property entered in Schedule No. 1 of the plaint, value whereof is at least Rs. 25,000/-, was sold at auction for inadequate price of Rs. 469/8/- only.

5. That the plaintiff has also learnt that subsequently the defendants have, on the 28th June, 1958, surrepti-tiously succeeded in getting delivery of possession on paper only, in respect of the disputed property, otherwise some land out of the disputed property is in posses-sion of the plaintiff and some land which stood mortgaged to others and which was later on sold to the mortgagees by the plaintiff, has been in possession of the vendees. The defendants have, by totally suppressing that also got the same sold at auction by declaring the same to be the plaintiffs property, which also is an illegal act of the defendants". To correctly appreciate the statements of the plaintiff made in the aforesaid para-graphs, it would be relevant to quote those statements, as they are in Hindi itself:

In Paragraph 10 of the plaint, the plain-tiff-petitioner claimed the following re-liefs, as translated into English: "10. That the plaintiff prays for the following reliefs: (1) That by passing a decree in favour of the plaintiffs against the defendants, it may be adjudicated by the Court that the order of auction sale passed on the 16th April, 1958, in Execution Case No. 10 of 1957, in the 3rd Court of Munsif at Patna, is quite inoperative, illegal and null and void and that the same is not at all binding on the said plaintiff, and which was confirmed on the 17th day of May, 1958, may be absolutely set aside.

(2) That the cost of this suit with in-terest till the date of realisation may be awarded against the person and property of the defendants.

(3) That such other reliefs as the plaintiff may be deemed entitled to by the Court may be awarded to the plain-tiff."

In Hindi, the same reads thus:

6 The suit was contested by Rajkumar Singh and Ram Narayan Singh (Opposite Party Nos. 1 and 2) and, accordingly, a written statement was filed on their behalf.

7. On the pleadings of the parties the following issues were framed:-

(1) Is the suit as framed maintain-able?

(2) Has the plaintiff any cause of action for the suit?

(3) Whether the sale dated 16-4-58 is void, illegal, fraudulent and not binding on the plaintiff and whether the same is liable to be set aside?

(4) To what relief, if any, is the plaintiff entitled ?

8. The parties led