The confirmation of sale and the title of the court auction purchaser are subject to the result of a petition under O.21 R.90 C.P.C. challenging the validity of the sale, and an application under O.34 R.5 C.P.C. for deposit of the decretal amount can be maintained even after the confirmation of sale if such a petition is pending in appeal.

ORDER :- This is a petition filed by the appellant in C.M. A. No. 532 of 1977 pending before this court under O.34, R.5, read with S.151, C.P.C. to permit the petitioner to deposit a sum of Rs. 2,67,974-64 into court.

2. The circumstances under which the said application has been filed may briefly be stated. The appellant had executed a mortgage of two items of properties in the year 1963. A suit O.S. 166 of 1965 was filed, on the said mortgage and there was a preliminary decree in that suit on 29-6-1966 for Rs. 1,23,088.58 with subsequent interest thereon. Later. on 28-2-1967. a final decree had been passed. An execution petition was flied in E. P. No. 119 of 1967 far realising the decree amount by sale of the hypotheca. As the decree holder died later his legal representatives came on record on 30-11-1967. The sad execution petition was posted for disposal on 22-12-1967. However, it was advanced and taken up on 1-12-1967 and posted to 2-12-1967, when the executing court directed the properties to be sold on 22-1-1968. The sale was actually held on 23-1-1968 and item 1 was sold in favour of the 5th respondent in the civil miscellaneous appeal for a sum of Rs. 40,000 and item 2 was sold in the name of the 6th respondent in the civil miscellaneous appeal for a sum of Rs. 73,500. On 10-3-1969, the defendant the judgment debtor field E. A. 157 of 1969, under O.21. R.90 C.P.C. for setting aside the sale. Notwithstanding the filing of the application the executing court had confirmed the sale.

3. In E. A. 157 of 1969, the judgment debtor contended that the Court auction purchasers of the two items of properties were close relations of the decree holder, and therefore the purchase should be deemed to be by the judgment debtor without obtaining leave to bid and that, in addition to that, there was irregularities in the conduct of the sale. The said E. A. 157 of 1969 was resisted by respondents 2 and 3 who are the legal representatives of the original decree holder, and the respondents 5 and 6 who are the purchasers of items 1 and 2 respectively. The 4th respondent was a subsequent mortgagee of the said properties. The executing court dismissed the said E. A. No. 157 of 1969 holding that there was no irregularity in the conduct of the sale. Aggrieved by the said decision of the executing court, C. M. A. 532 of 1977 had been filed by the judgment debtor. That appeal was allowed by this court on the ground (1) that considerable prejudice has been caused to the judgment debtor in advancing hearing of the execution petition without notice to him or his counsel ; (2) that the advancement of the hearing of the execution petition is a clear case of the abuse of process of court; and (3) that the sale had gone on without the judgment debtor's valuation being shown in the proclamation. The result was, E. A. 157 of 1969 stood allowed and the sale in favour of the respondents 5 and 6 stood set aside. Later, two petitions, one by the 3rd respondent and the other by the legal representatives of the 5th respondent were filed for setting aside the judgment of this court in C. M. A. 532 of 1977 dated 5-3-1981.

4. The grounds urged in the first case by the third respondent are that he was not personally served in the appeal, that he was said to have begin served only by substituted service, that; as he had shifted his residence he could not be serve personally, that he came to know about the disposal of the civil miscellaneous appeal only a month before the filing of the petition and that therefore in the interest of justice, the order passed in the civil miscellaneous appeal should be set aside as far as he is concerned and the matter reheard. The second petition has been filed by the legal representatives of the 5th respondent. The contention was that the 5th respondent had died long long ago and the civil miscellaneous appeal has been heard without bringing the legal representatives of the 5th respondent on record and therefore, the decision