Rajamannar, C.J.-This is an application for review of the judgment and Decree in Second Appeal No.1313 of 1949. It was heard and disposed of by me on 26th February, 1953. I dismissed it on one short ground, namely, that the appellants were concluded by certain prior proceedings which eventually ended in Civil Miscellaneous Second Appeal No.113 of 1943. The respondent filed a suit in the Court of the District Munsif of Nandyal to recover possession of land which originally belonged to one Venkatasubbiah, the father of the defendants, who are the appellants in the Second Appeal. It was sold in execution of the decree in Original Suit No.13 of 1935 on the file of the same Court and purchased by one R.Chinnaramiah on 4th June, 1941, in Court auction. Chinnaramiah sold the property to the plaintiff respondent. The suit was brought on the allegation that the plaintiff was put in possession by the Court auction-purchaser, but the defendants subsequently dispossessed the plaintiff and took possession of the land forcibly. The main plea in defence was that the Court sale held on 4th June, 1941, was illegal and void because there was no publication of the proclamation relating to the sale. It: was further stated that the Court auction-purchaser was only a benamidar of the plaintiff who was in effect the decree-holder as he had attached the decree in Original Suit No.13 of 1935 in execution of the decree which he had obtained in Original Suit No.367 of 1936 on the file of the same Court against the decree-holder in Original Suit No.13 of 1935. The defendants alleged that the suit lands which were sold for Rs.220 were worth not less than Rs.2,000 on the date of the Court sale. The judgment-debtor in Original Suit No.13 of 1935 the father of the appellants, filed Execution Application No.956 of 1941 under Order 21, rule 90 and section 47 of the Code of Civil Procedure to set aside the sale. This application was dismissed by the District Munsif on the ground that it was filed after thirty days after the sale. An appeal was filed to the District Court of Kurnool, but it was dismissed. A second Appeal (Civil Miscellaneous Second Appeal No.113 of 1943) was then filed in this Court. That was also dismissed on 13th July, 1943, by Kuppuswami Ayyar, J., on the ground that no second appeal, lay because the application must be treated as one filed under Order 21, rule 72 or rule 90 and not under section 47 of the Code. The sons of the Judgment debtor, who had died meanwhile, three of the present appellants, filed an application for review of the judgment passed in the Civil Miscellaneous Second Appeal. The learned Judge dismissed the application, and in doing so, observed as follows:

“I have definitely pointed out in my order sought to be reviewed that the two grounds on which the sale was attacked, namely, that there was no proclamation and that the purchase was benami for the decree-holder are grounds which would attract Order 21, rule 90 and Order 21, rule 72 and dismissed the appeal on the ground that no second appeal lies against orders passed on a petition filed under these provisions.”

The plaintiff respondent relied upon the above proceedings as a bar to present suit.

The District Munsif held that there was no proclamation of the sale as required by Order 21, rules 66-69 of the Code and that therefore the defendants were not debarred from questioning the validity of the Court sale because of the prior proceeding ending in Civil Miscellaneous Second Appeal No.113 of 1943. On these findings, he dismissed the suit. On appeal, the learned Subordinate Judge reversed this decision and decreed the plaintiff’s suit. He agreed with the District Munsif indeed, it was not disputed that the sale proclamation was not effected before the sale took place. But he held the sale on that ground was not a nullity and that non-compliance with rules 66 to 69 of Order 21 of the Code would only amount to a material irregularity which could be urged only in an applicat

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