ORDER :- The petitioner in E. A. 716 of 1969, in E. A. 157 of 1969, in E. P. No. 119 of 1967, in O. S. No. 166 of 1965 on the file of the court of the Subordinate Judge, Madurai, is the appellant. This appeal has come to be filed in the following circumstances.

2. The first respondent in the said petition filed the suit O. S. No. 166 of 1965 against the appellant for recovery of amounts due to him on a mortgage and obtained a preliminary decree and a final decree in his favour. The fourth respondent, who was the second defendant in the suit, was a subsequent encumbrancer and on payment of necessary court-fees by him, he was also given a decree for the amount due to him. Consequent, on the death of the first respondent, the second and the third respondents, got themselves impleaded as legal representatives of the first respondent, and brought the mortgaged items for sale in court auction. Certain items of properties, which were the hypotheca, were brought to sale in court auction and the sale was held on 22-1-1968 and continued on 23-1-1968.

3. The appellant filed a petition before the learned Subordinate Judge, praying for an adjournment of the sale on 22-1-1968 on the ground that wide publicity has got to be given for the court auction sale. Since, the appellant had been adjudicated insolvent prior to the hypotheca being brought to, sale, the Official Receiver, in whom the properties of the appellant had vested, also filed an application before the learned Subordinate Judge for adjournment of the sale on 22-1-1968. The learned Subordinate Judge did not deem it necessary to stop the sale on 22-1-1968, in compliance with the request of the appellant and the Official Receiver, but instead directed the sale to continue on the next day also i. e. 23-1-1968.

4. On 22-1-1968, the 7th respondent, who is said to be a nephew of the 2nd respondent purchased item 1 of the property for Rs. 40,000. On the second day i. e., 23-1-1968, the 6th respondent said to be a partner of the 4th respondent purchased item 2 for Rs. 73,500.

5. It was, therefore, the appellant filed the petition E. A. No. 157 of 1969 under Order 21, Rule 90, Civil P. C. praying that the sales of items 1 and 2 of the properties held on 22-1-1968 and 23-1-1968 be set aside. The contention of the appellant in the said petition was that due and proper publicity had not been given for the sale, but that the respondents misled some of the intending competitors by representing to them that no sale would take place, that they scared away some of the other competitors by false representations, that it was on account of such malpractices the properties had been sold for low prices, that item 1 was easily worth Rs. 80,000 that item 2 was likewise worth Rs. 1,50,000, that the respondents had acted fraudulently in order to knock off the properties for low prices and that therefore, the sale of items 1 and 2 of the hypotheca should be set aside. The Official Receiver also filed an affidavit in support of the contentions of the appellant and prayed for the sale of items 1 and 2 of the hypotheca being set aside.

6. This petition E. A. 157 of 1969 was posted for hearing on 28-7-1969. On that date, the counsel for the appellant moyed for an adjournment on the ground that the appellant, who had proceeded to Madras, had taken ill at Madras, that the appellant had sent a medical certificate dated 25-7-1969 from Madras, that the appellant had also sent a telegram on 27-7-1969 and that therefore, the enquiry of the petition may be adjourned to some other date. The learned Subordinate Judge refused to grant adjournment and thereupon the appellant's counsel reported no instructions. Consequently, the learned Subordinate Judge dismissed the application E. A. No. 157 of 1969 for default.

7. Coming to know about the dismissal of the petition, the appellant filed E. A. 716 of 1969 under Order 21, Rule 105, Civil P. C., praying that E. A. 157 of 1969 which had been dismissed for default, may be restore

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