The main legal point established is that a sale held in execution of a decree without notice to the judgment debtor is nullity and can be set aside at any stage. The court also emphasized the importance of proving material irregularity or fraud in conducting the sale.

Mihir Kr.Jha, J.

1. Heard Mr. B.K. Shukla, learned Senior Counsel, on behalf Of the petitioner and Mr. Ajay Kumar Jain learned counsel for the Opposite party.

2. The defendant judgment debtor- petitioner has moved this Court against the order dated 3.5.2008 passed in Misc. Appeal No. 21/1995 affirming the order dated 26.8.1995, rejecting the prayer of the petitioner to set aside the sale in terms of Order XXI Rule 90 of the Code of Civil Procedure.

3. Facts which are not in dispute is that the plaintiff-decree holder-opposite party had filed Money Suit No. 27/1970 against the petitioner for realization of Rs. 1274/- which was decreed ex-parte by a judgment and decree dated 5.6.1972. It appears that subsequently after 7 years, an execution was levied vide Execution case no. 12/1979 by the plaintiff-opposite party being the decree holder and in course of execution proceeding, the Executing Court had allowed sale in favour of the plaintiff-decree holder for a sum of Rs. 2017.71 paise, whereafter it is said that delivery of possession was also effected on 6.1.1982 and the Execution Case was consequently finally disposed of on 16.6.1984.

4. The petitioner, the judgment debtor, however, claiming that he had not been given any notice either at the stage of execution or in course of sale, had filed an application on 5.11.1984 for setting aside the sale and took a plea that he came to know of such sale only on 3.9.1984. Such application for setting aside the sale, Misc. Case no. 42/1984 was contested by the parties and after leading of evidence, the Executing Court, by an order dated 26.8.1995 had dismissed the application filed by the petitioner primarily on the ground that the application filed by the petitioner under Order XXI Rule 90 was barred by limitation. The appeal carried by the petitioner before the Lower Appellate Court has been dismissed by an order dated 3.5.2008 affirming the order of the Trial Court which has also given an additional reason, holding that as a matter of fact once the sale had been confirmed, the application filed by the petitioner under order XXI Rule 90 C.P.C. for setting aside the sale was itself not maintainable.

5. Mr. Shukla, learned Senior Counsel appearing on behalf of the petitioner while assailing the aforesaid two impugned orders has advanced the following three fold submissions namely:

(a) The view taken by the Lower Appellate Court that a proceeding under Order XXI Rule 90 was not maintain- able after confirmation of sale is wholly unsustainable inasmuch as no such restriction can be found either in the statute or in the judgment.

(b) The view taken by the Executing Court that the application filed under Order XXI Rule 90 by the petitioner was barred by limitation, also suffers basically from an incorrect application of law inasmuch as the repealed provision of Article 127 of Limitation Act has been relied by the Court for holding that the period for setting aside sale in execution of a decree was only 30 days and as the application filed by the petitioner was admittedly filed after two months, the same was barred by limitation. Mr. Shukla, in this context, has invited the attention of this Court towards the amendment made by Act 104 of 1976 wherein the word 30 days had been replaced by 60 days in the context of Article 127 with regard to setting aside a sale in execution of a decree and submits that the application filed by the petitioner within 60 days of knowledge of sale was actually not barred by limitation.

(c) The petitioner who was never given any notice either in course of execution proceeding or even in course of the proceeding undertaken for sale, could not have been left without remedy specially when his 29 decimals of land is said to have been auctioned sale for a paltry sum of Rs. 2017.71 paise for fulfillment of his liability of Rs. 1274/-only. In this regard, it has thus been contended on behalf of the petitioner that both the courts have failed to take into considerat