Heard the learned counsel for the appellant and contesting respondents.

2. This appeal arises out of a suit for partition filed by the 1st respondent against the appellant, his mother and brother. Property originally belonged to one Karuppaswami. Defendants 1 to 3 are his wife and children. One Kochumol filed O.S.No.485 of 2003 before the Court of Munsiff, Ottappalam against the appellant (1st defendant) and obtained a decree for money. The suit was decreed ex-parte against the appellant. The ex-parte decree was executed through E.P. No.90 of 2006 by sale of 1/3 share of the 1st defendant (appellant) in the plaint schedule property. The property was put in auction and it was purchased by the 1st respondent herein. The sale was confirmed in his name. The property was symbolically delivered to him. Thereafter, 1st the respondent/plaintiff demanded partition, which was refused by the defendants.

3. The suit was decreed by the trial court finding that the 1st respondent is entitled to 1/3 share of the property by virtue of the court sale in O.S.No.485 of 2003. It goes without saying that 1/3 share belonged to the appellant was obtained by the 1st respondent in the court sale. Other defendants in the suit did not seriously contest the case. Contention raised by the 1st defendant/appellant, that the sale was incompetent and his rights were not extinguished by the court sale, were repelled by the trial court.

4. The judgment and decree of the trial court was unsuccessfully challenged before the lower appellate court. After re-appreciating the evidence, the lower appellate court also agreed with the trial court and the appeal was dismissed.

5. The substantial questions of law raised in this second appeal are as follows :

a. Whether the proceedings leading to the sale of property in execution of the decree in O.S No.485 of 2003 is void for noncompliance of mandatory provisions in order 21 Rule 66 of the Code of Civil Procedure (in short, “the Code”) ?

b. Whether such a question can be raised in a subsequent suit, that too without pursuing the remedy originally taken under Section 47 of the Code ?

6. Learned counsel submitted that the appellant is seriously prejudiced by the incorrect procedure adopted by the execution court in E.P No. 113 of 2007 in O.S. No.485 of 2003. In-order to understand the real point of dispute, the records in E.P.No.113 of 2007 were also called for and perused.

7. Insofar as the contentions in this suit are concerned, there is not much dispute. The property originally belonged to the father of the appellant and on his death, the appellant, his brother and mother got 1/3 right each. Fact that appellant was the defendant in O.S.No.485 of 2003, a suit for realisation of money, is also not disputed. Further fact that he suffered an exparte decree, is also not under challenge. Only contention raised by the appellant is that the property was sold for satisfying the decree in O.S.No.485 of 2003, without complying with the mandatory provisions in order 21 Rule 66 of the Code. On a perusal of the execution petition in E.P.No.113 of 2007, it is seen that on 29.06.2006, notice was issued to the respondent in the execution petition (that is the present appellant) under order 21 Rule 66 of the Code and the matter was posted to 28.07.2006. On 28.07.2006, notice was again sent by registered post. Case was adjourned to 28.08.2006. On that day, the Court noticed that the registered letter was returned 'unclaimed'. Then, the Court ordered the decree holder to produce draft sale papers and encumbrance certificate and it was adjourned to 23.09.2006. On 23.09.2006, draft sale papers and encumbrance certificate were produced and the matter was adjourned to 26.09.2006. On 26.09.2006, the matter was posted for settlement of proclamation to 28.09.2006. On that day, the Court considered that the property sought to be sold is having an extent of 45 cents and that the decree holder had proposed Rs.30,000/- as upset price for 1/3 share o