This Second Appeal by the plaintiff is against a reversing judgment of the District Judge, Ramanathapuram, and raises an interesting point of law. In execution of a decree obtained by defendants 2 and 3 against the appellant, the suit property was brought to sale and the first defendant, who was a stranger, was the purchaser. The sale was on 25th March, 1957, and was confirmed on 4th June, 1957. The suit was instituted in October, 1957, by the appellant for a declaration that the sale was fraudulent and void, and for preventive injunction or in the alternative for recovery of possession. The appellant sought this relief on the ground that though the decree was passed on 16th July, 1956, and no notice of the execution petition under Order 21, rule 22 was required to be given to him, still, inasmuch as the settlement of the proclamation was without notice to him, contrary to the provisions of Order 21, rule 66, Civil Procedure Code, the eventual sale in execution was a nullity, and that the failure to comply with the requirements of the

said rule 66 was merely an irregularity. What appeared to have happened was that the decree-holders paid batta on 3rd January, 1957, and the process-server did not actually serve the notice in the proceedings settling the proclamation, but on 4th January, 1957, he merely affixed the notice on the outer door of the appellant’s house. The trial Court was not prepared to accept that the process server went to serve the appellant at all, and it found that the sale was fraudulent and the alleged service of notice was as good as no notice at all. On that view, the trial Court held the execution sale to be void and granted a decree to the appellant for possession. On appeal by the first defendant purchaser, the lower appellate Court considered that the service of notice by affixture, even assuming that the process server went to the plaintiff’s house, was not a proper service, and that this was material irregularity and not an illegality which would render the sale null and void, and that, in such circumstances, the proper remedy of the appellant was to have filed a petition under Order 21, rule 90, Civil Procedure Code, and that he having not done so, the suit did not he. The lower appellate Court, therefore, allowed the appeal and dismissed the suit. That is how the plaintiff has come to this Court in Second Appeal.

It is argued for the appellant that this is a case to which Order 21, rule 90, will have no application, and that, therefore, the proper remedy is a suit. It is common ground that the execution petition which resulted in the sale was filed within 2 years of the date of the decree and that, therefore, no notice was required to he given to the judgment-debtor in the execution petition. It is also common ground that in the proceedings to settle the proclamation, notice is bound to be given to the judgment-debtor as required by Order 21, and rule 66. The finding of the lower appellate Court, as I mentioned, is that there was no proper service of notice on the appellant in those proceedings. Though the learned Counsel for the purchaser wanted to attack this finding, in my view, the lower appellate Court should have even gone further and agreed with the trial Court that there was no service at all of the notice in the proceedings for settlement of the proclamation. The lower appellate Court, without weighing the process - server’s evidence, proceeded on the assumption that what he deposed was true. The trial Court appreciated his evidence and was not prepared to accept it. I think, in taking that view, the trial Court was right. If then there was no notice served upon the appellant under Order 21, rule 66, the question directly arises as to whether the present suit is barred and the appellant’s only remedy was under Order 21, rule 90 The argument for the appellant is that in terms that rule-does not cover a breach of rule 66, as rule 90 is confined to setting aside a sale on the ground o