Applicability to an agreement to set aside sale in execution.

We consider that this appeal should be heard by a Full Bench as it raises a question of some importance relating to the application of Order 32, rule 7, of the Code of Civil Procedure.

The plaintiff and defendants 5 and 6 are the sons of the fourth defendant. The first defendant obtained a decree in O. S. No. 88 of 1929 on the file of the Court of the Subordinate Judge of Bapatla, for the amount due under a promissory note executed by defendants 3 and 4. In execution of that decree, the properties in suit which were the ancestral properties of the fourth defendant’s family were attached and brought to sale subject to a mortgage which had been executed by the fourth defendant in favour of the first defendant. In the Court auction, the properties were purchased by one Vajja Bapiraju, the brother of the second defendant. He is alleged to be the clerk of the first defendant. The properties were sold for a sum of Rs. 205 subject to the mortgage in favour of the first defendant, on 29th February, 1932. On 29th March, 1932, an application was filed by the maternal grandfather of the plaintiff as his guardian (the plaintiff being then a minor) to set aside the sale under Order 21, rule 90 (E. A. No. 136 of 1932), on the ground that the sale was vitiated by material irregularities and fraud in publishing and conducting it. This application, after notice to the respondent, was posted for hearing on 6th August, 1932. Meanwhile, on 28th July, 1932, a Memorandum, marked Exhibit D-4 in the case, was filed into Court with the thumb impression of the guardian of the plaintiff and the initials of his pleader and of the pleader for theCourt auction-purchaser. On 6th August, 1932, the Court made the following note“Matter is said to have been adjusted and a week wanted. Call on 12th August”. On 12th August, 1932, the pleader for the plaintiff’s guardian made the following endorsement “Adjusted. May be dismissed as not pressed.” Thereupon the Court passed an order dismissing the application. Following the dismissal, the sale was. duly confirmed under the provisions of Order 21, rule 92.

The plaintiff attained majority on 8th October, 1941. On 9th October, 1944, he filed the suit out of which this appeal arises to set aside the order dated 12th August, 1932, in E. A. No. 136 of 1932 and to try the same on the merits. Two main grounds were alleged in support of his case: (1), the said order dismissing the application was made in pursuance of an agreement between his guardian and the purchaser, but the agreement did not receive the sanction of the Court; (2) the guardian acted with gross negligence and to his prejudice in abandoning the petition filed by him to set aside he sale. The first defendant to the suit was the decree-holder. The second defendant is the brother of the auction-purchaser of the suit properties. Defendants 3 to 15 were added as subsequent alienees in possession of some of the items of property.

Several pleas were raised in defence including the plea that the suit was not maintainable. The learned Subordinate Judge of Tenali, held that the order of dismissal was void because sanction of the Court had not been obtained for the agreement in pursuance of which the application was withdrawn by the plaintiff’s guardian and set aside the order passed on the application and directed it to be restored to file. He held that the suit was maintainable. In this view, he did not give his findings on the other issues raised in the case. The first defendant is the appellant.

Several questions of law were raised by Mr. P. Somasundaram, learned advocate for the appellant. But as we have decided to refer the case to a Full Bench, it is not necessary to mention all of them. It is sufficient to mention what we consider is the main question, namely, whether Order 32, rule 7, will apply to this case. Assuming that the application under Order 21, rule 90, was withdrawn in pursuance of an agreement between the guardian and the auction-purchaser the