Application to be treated as one under Order 21, Rule 90.

RAMANUJAM, J. :- The appellant, who is the same in all these appeals, is a decree-holder in O.S. No. 328 of 1971 on the file of the Sub Court, Madurai. He obtained a decree in the said suit on 22-10-1971, Even before the passing of the decree he had attached the property of the respondent judgement-debtor in I.A. No. 597 of 1971 before judgement. The said attachment was made absolute on the date of the decree. The appellant thereafter filed E. P. 222 of 1972 for the sale of the attached property to realise the decree amount. On 5-2-1973 and 17-3-1973, the respondent has paid in all a sum of Rs. 6,000. For the balance of the decree amount lot No. I of the attached property was actually sold, on 28-1-1974, for a sum of Rs. 40,000, to the decree-holder and the second lot was not sold for want of bidders. The sale of lot No. I was confirmed by the court on 2-3-1974 and full satisfaction of the decree has also been recorded.

2. Subsequently the appellant filed a petition in E.A. 600 of 1974, in E.P. 222 of 1972, for setting aside the sale of lot No. 1 held on 8-1-1974, under Section 47 C.P. Code on the ground that there were several irregularities in the settlement of the sale proclamation and also in the conduct of the sale. The irregularities alleged were - (1) that the proclamation was not duly drawn up according to law in that a sum of Rupees 8,000 paid on two earlier dates on 5-2-1973 and 17-3-1973, had not been given credit to and that the sale proclamation had not been properly filled up and it contained a number of gaps (2) that the sale proclamation did not also contain the date of suction and the date when the court had posted the case for further hearing after auction; (3) that the sale proclamation did not give half yearly tax payable for lot No. 1 or the revenue assessment far lot No. II, which are quite material to enable the intending bidders to know the actual value of the two lots; (4) that the reduction of the upset price from Rupees 80,000 to Rs. 40,000 for lot No. 1 is not proper and (5) that the judgement-debtor is an agriculturist entitled to the benefits of Act IV of 1938, as amended and the decree-holder cannot claim any interest prior to 1-3-1962 and, therefore, the amount mentioned in the sale proclamation as being due from the judgement-debtor is incorrect,

3. The said application filed by the judgement-debtor under Section 47 C.P. Code for setting aside the sale was resisted by the appellant on various grounds. The first and foremost defence taken is that an application for setting aside the sale under Section 47 C.P. Code is not maintainable and that it is also barred by limitation. The other defences are that the proclamation was drawn up strictly in accordance with law, that the sale proclamation was drawn up for the amount actually due after giving credit to the payment made by the judgement-debtor, that there was no irregularity, much less material irregularity, in the matter of either the settlement of the sale proclamation or in the actual conduct of the sale, and that the sale of lot No. 1 is perfectly legal and valid and there was no undervaluation of that property.

4. The executing court, after considering the matter in detail, held that the sale proclamation did not comply with the provisions of Rule 66 of Order 21 C.P. Code, as that it contained lot of blanks that it did not mention the place in the court building where the auction was to take place, that it did not mention the exact time when the auction would be held, that the payments made by the judgement-debtor had not been given credit to and that it did not mention the tax payable on the properties, On the question as to whether the judgement-debtor is an agriculturist, entitled to the benefits of Act IV of 1938, as amended, it took the view that he is not entitled to these benefits, However, in view of its finding that there is material irregularity in settling the sale proclamation, it set aside the sale.

5. As against the order