Sale held without service of notice is null and void.

K.M. Natarajan, J.

1. The judgment-debtors are the petitioners herein. The facts which are necessary for the diposal of this revision are as follows: The first respondent herein obtained a money decree on 14.10.1978 against the petitioners and in execution of the said money decree, the properties were brought to sale in E.P.No. 80 of 1979 and sold in court auction on 19.10.1980. The second respondent herein is the successful bidder in the auction for Rs. 18,006/-. The sale was confirmed on 10.11.1980. Thereafter the first respondent herein filed an application for issue of a cheque in respect of the decree amount and full satisfaction was also recorded and the execution petition was terminated. The first petitioner is the wife of the second petitioner. The third petitioner is the brother of the second petitioner. They filed R.A.No. 257 of 1981 on 11.3.1981 under Sections 47 and 151 of the Code of Civil Procedure for passing an order declaring that the court auction sale held on 10.10.1980 is null and void. According to the petitioners, no notice under Order 21, Rule 66 of the Code of Civil Procedure was served on the petitioners before the proclamation was drawn and the sale held without giving such a notice is null and void. It is further contended that they came to know of the court auction sale only on 7.3.1981 when the second respondent approached the first petitioner to hand over possession of the properties. According to the petitioners, originally the upset price was fixed at Rs. 38,000/-and the same was reduced to Rs. 18,000/-without the knowledge of the petitioners, that though the sale was adjourned a number of times for the purpose of reducing the upset price for want of bidders, the petitioners were not served with any notice and that the report of the Amin that the petitioners were not available in the petition mentioned premises is false and it has been prepared at the instance of the first respondent.

2. The said application was resisted by respondents 1 and 2 and they filed separate counters inter alia contending that the allegations that no notice was taken to the petitioners before proclamation was drawn is false, that the petitioners were fully aware of the proceedings and that it is false to allege that they came to know of the same only on 7.3.1981. It is further contended that since the petitioners were not available in the petition mentioned premises, the Amin has no other go except to serve the notice by affixture. According to them, the value of the property given in the affidavit of the second petitioner is not correct and the property has been sold for a proper price. It is also contended by the first respondent that paper publication was also made prior to the sale on 10.10.1980, besides the substituted service on the petitioners. Lastly it was contended that the application filed under Sections 47 and 151 of the Code of Civil Procedure is not maintainable and the petitioners ought to have filed an application under Order 21, Rule 30 of the Code of Civil Procedure within the time and the application is hopelessly barred by limitation.

3. In support of the contentions of the petitioners, P.Ws. 1 to 3 were examined and Exs.P-1 to P-31 were marked. On the side of the respondents, R.W.1 (Amin) was examined and no document was exhibited. The learned Principal Sub-Judge, Tirunelveli, enquired into the application and dismissed the same. Aggrieved by the same, this revision is filed.

4. Learned Counsel for the petitioners, Mr. N. Ganapathy, mainly contended that in the instant case no notice was served on the petitioners in the execution at any stage. Even according to the case of the respondents, no notice was served personally, but only affixture service was effected at all the stages. In view of Order 5, Rule 9(2) read with Sub-rule 4(iii) of the Code of Civil Procedure, there is no proper service on the petitioners in respect of the sale and as such the entire proceedings are null and void.

5. Order 5,