K.T. Sankaran, J.

1. The question involved in these Revisions is whether the court auction sale of the property belonging to two persons held in execution of a money decree could be set aside by invoking Section 47 of the Code of Civil Procedure, at the instance of the legal representatives of one of them, who died even before filing the Execution Petition and whose legal representatives were not made parties to the Execution Petition.

2. The parties are referred to as per their rank in C.R.P. No. 346 of 2004. The third respondent partnership firm, of which respondents 4 to 7 are partners, availed a loan from the second respondent, the State Bank of Travancore. The suit filed by the bank for realization of the amount was decreed on 3.9.1986. For realization of the decree amount, Bank filed E.P.No.375 of 1994. In that Execution Petition, the property jointly owned by judgment debtors 6 and 7, and which was mortgaged in favour of the bank, was sought to be sold. The sale was to be held on 19.1.1998. No bidders participated in the auction. The executing court dismissed the Execution Petition for default on the same date.

3. On 4.6.1998, the Bank filed E.P.No.123 of 1998. On that date, the judgment debtor No.7, Sarojini Amma, was not alive. (She died on 21.6.1996.) Her legal representatives were not made parties to the Execution Petition. The Execution Petition was filed as if Sarojini Amma was alive. In the Execution Petition, judgment debtors 2, 3 and 6 were served. Notice to judgment debtors 1, 4, 5 and 7 was effected by substituted service, that is, by newspaper publication. The property was sold in court auction on 20.1.2000. The revision petitioner purchased the property having an extent of 1.01 acres for a sum of Rs.1,01,000/-. The sale was confirmed on 24.1.2001.

4. The judgment debtor No.6 filed E.A.No.74 of 2000 under Order XXI Rule 90 of the Code of Civil Procedure to set aside the sale. The executing court dismissed that application on 24.1.2000 and the dismissal was confirmed in appeal, C.M.A.No.23 of 2001, on 14.3.2002. After the dismissal of E.A.No.74 of 2000 by the executing court, the sale was confirmed and the sale certificate was issued to the revision petitioner. The revision petitioner/auction purchaser filed E.A.No.349 of 2002 for delivery of possession.

5. The first respondent herein, who is the legal representative of judgment debtor No.7 Sarojini Amma, filed E.A.No.425 of 2003 under Section 47 of the Code of Civil Procedure to set aside the sale. It was contended that the sale held with a dead person on the party array in the Execution Petition is null and void and that it will not bind the right, title, interest and possession of the petitioner therein (first respondent herein) over the property. It was alleged that the decree holder and the auction purchaser colluded together and fraud was played upon Court, which resulted in the sale of the property. It was also stated that no notice was served upon the petitioner therein.

6. The decree holder and the auction purchaser contended that E.A.No.425 of 2003 was not maintainable in law. Devaki Sukumaran, judgment debtor No.6, had filed an application to set aside the sale and that application was dismissed. Thereafter, her sister's legal representative is not entitled to question the sale. It was also contended that the first respondent herein was aware of the sale and the proceedings in E.A.No.74 of 2000. The auction purchaser contended that he cannot be blamed for lack of service of notice on the legal representative of Sarojini Amma.

7. The court below held that sale without notice to the legal representative of Sarojini Amma, judgment debtor No.7, is illegal and, therefore, it is liable to be set aside. However, it was held, the sale shall be set aside only in so far as it relates to the right of the petitioner in the application (first respondent herein) over the decree schedule property, and to the extent to which she inherited as the legal representative