The complete absence of proclamation amounted to an illegality, not a mere irregularity, and therefore the application for setting aside the sale fell within S.47 of the Code, with no bar of limitation.

1. The legal representatives of the decree-holder are the appellants and the 4th defendant-judgment¬debtor the respondent. The second appeals arise in execution.

2. Five items of properties were directed to be sold under a mortgage decree; and items 3 to 5, belonging to the 4th defendant, were directed to be sold as the first lot. Notice of draft proclamation was served on the 4th defendant and the first lot was proclaimed for sale. That lot was actually sold on 4th April, and the sale was confirmed on 4th June, 1953. More than two years thereafter, the decree-holder filed an application for amending the plaint, the decree, the sale proclamation, etc. Notice was issued in that application and on receipt of notice the 4th defendant filed two applications which have given rise to the second appeals. One of the applications was to set aside the sale & the other was to condone the delay in filing that application. The original court dismissed both the applications; but on appeal the learned Subordinate Judge reversed the orders and allowed the applications.

3. Both the lower courts have concurrently held that the 4th defendant was served with notice regarding draft proclamation and that finding cannot be seriously canvassed in second appeal. The next question is whether there was proper proclamation as contemplated by the provisions of the Civil procedure Code. The objection raised by the 4th defendant was that the proclamation was not published by affixture on any of the items in the first lot. On this question the primary court has held that the Amin affixed the proclamation on the properties proclaimed for sale. The learned Subordinate Judge has disbelieved the evidence on this point and has held that there was no proper affixture of the proclamation in any of the items included in the decree.

4. The Amin who is alleged to have affixed the proclamation is R.W.2. The properties are shown in the proclamation as lying in the Panangad amsom, whereas they are really in the Padinhare Vemballoor amsom and desom. It is this mistake that was sought by the decree-holder to be rectified by amendment after two years of the confirmation of the sale. The Amin says that he went to Padinhare Vemballoor amsom, because the properties were there. In the next breath he says that he went to Panangad amsom and the properties were shown to him. One of the witnesses to the affixture is a son of the 1st defendant. According to the 4th defendant, the Ist defendant was behind the execution proceedings and he was interested in seeing that the properties were brought to sale. This suggestion has some force, because in the notice of draft proclamation another son of the 1st defendant figures, as a witness. Besides that, as I have pointed out, the evidence of the Amin is also not above board to establish that the proclamation was affixed on the properties. If the proclamation showed that the properties lay in Panangad amsom, I fail to see why and how the Amin went to Paddinhare Vemballoor amsom, unless the proclamation was amended. This enthusiasm of the Amin, coupled with the presence of the son of the 1st defendant as witness to the affixture, is suspicious; and the learned Subordinate Judge was right in placing no reliance on the evidence of the Amin regarding the affixture. In this connection, I may observe that the learned Munsiff also appears to have evinced a little undue enthusiasm in justifying the action of the Amin. I may also observe that the strong language used by the learned Munsiff and his reference to the story of the obedient son (he means the story of Casabianca) in his judgment are a little out of taste. Ultimately, I accept the finding of the learned Subordinate Judge that the proclamation was not affixed in any part of the properties proclaimed for sale.

5. The further question for consideration is regarding the effect of such failure. The learned advocate of the appellants brings to my notice two or throe decisions. One of them