JUDGMENT (17-12-1971) :- The auction purchaser is the first appellant. The decree holder is the second appellant. The judgment debtor, respondent herein, filed an application in E. A. 669 of 1969 under Order XXI, Rule 90, Civil P. C. to set aside the Court auction sale held on 25-6-1969. It was alleged in that application that the property worth about Rs. 7,000/- has been knocked down for Rs. 701/-, that no proper advertisement had been made before the property was brought to sale, that fraud was played upon the Court in order to make the property be knocked down for a low price and that there was no need to furnish security to set aside the sale. The decree-holder, second appellant herein, filed a counter stating that there were no merits in the application and that the same had been filed with a view to protract the execution proceedings and delay the realisation of the decree amount. E. A. 669 of 1969 was heard by the District Munsif, Chingleput, who held that the proclamation of sale and the sale were in order and thus dismissed the application. Aggrieved by the order of the District Munsif, the judgment-debtor preferred C. M. A. 13 of 1970 before the District Judge, Chingleput. The District Judge held that in the sale proclamation no encumbrances have been mentioned, that the revenue assessed upon the land has not been noted, that the value mentioned by the judgment-debtor in his counter to E. A. 224 of 1969 has not been mentioned, that even the decree-holder's valuation was not given and that the proclamation suffered from material irregularities. Thus he allowed the appeal. Aggrieved by the decision of the District Judge, Chingleput, the auction purchaser and the decree-holder have preferred this civil miscellaneous second appeal.

2. Thiru K. M. Srinivasan, the learned counsel for the appellants, submitted that there cannot be any setting aside of the sale under O. XXI, R. 90, Civil P. C. in view of the fact that the sale has taken place and confirmation of the sale has also been made with the issue of a sale certificate and possession being handed over to the auction purchaser. The learned counsel has also stated that there is no substantial injury caused to the judgment-debtor for setting aside the sale and that the District Judge has taken extraneous matters into consideration in setting aside the Court auction sale. It has also been further submitted by the learned counsel that there is no allegation made in the application filed under Order XXI, Rule 90, as to the substantial injury alleged to have been caused to the judgment-debtor.

3. Thiru M. V. Krishnan, the learned counsel for the judgment-debtor, supported the judgment of the District Judge and submitted that there is a clear reasoning given by the District Judge for his setting aside the Court auction sale and that there is no difficulty in coming to the conclusion that the District Judge who disposed of the C. M. A., has clearly found the substantial injury caused to the judgment-debtor in the holding of the Court auction sale. The learned counsel for the respondent also submitted that this appeal is not maintainable since the order passed by the District Munsif and the one by the District Judge arose out of an application under Order XXI, Rule 90 and that the order passed under Order XXI, Rule 90 has to be construed to be one passed under O. XXI, R. 92 and hence the same comes under Order XLIII, Civil P. C. and as such there cannot be any second appeal against the order in C. M. A. 13 of 1970.

4. Thiru K. N. Srinivasan, in support of his contention that a sale once confirmed, cannot be set aside, cited the decision in Bojjanna v. Kistappa, 1947-1 Mad LJ 10 : (AIR 1947 Mad 268). In that decision, a Bench of this Court has stated that a Court has no power under Section 151, Civil P. C. to cancel a sale in execution after it has been confirmed, on the ground of a fraud on the court in the matter of the valuation of the property sold, which fraud had not been the

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