Judgment :- The defendant-judgment-debtor is the appellant in this second appeal which is filed against an order of the lower Courts refusing to set aside an execution sale of his residential house held on 24-12-1945 and confirmed on 29-1-1946. The facts that have led to this application have to be briefly stated,

2. The plaintiff obtained a decree for money in O. S. No. 166 of 1935 on the file of the District Munsiffs Court of Devakottah against the defendant, who was then a minor, on 1-4-1936. This decree was confirmed subject to a slight modification on 8-12-1936. There were previous applications for execution and the final order on the last execution application was passed on 8-4-1942 dismissing the execution petition for non-payment of batta. The judgment-debtor, who was a minor at the time of the decree and for some time thereafter, attained majority on 8-1-1941 and left India for Burma on 23-1-1941. Owing to the outbreak of hostilities he was detained in Burma and returned to British India on 27-3-1946. When he returned he found that his residential house had been sold in execution of the decree at the instance of the decree-holder who purchased the properly himself. He there upon filed e. A. No. 33 of 1947 to set aside the sale.

3. E. P. No. 158 of 1945 in pursuance of which the execution sale took place was filed by the decree-holder against the judgment-debtor treating him as a minor represented by his paternal grand father Perianna Chetty who was his guardian ad-litem. Since e. p. No. 158 of 1945 was filed more than two years after the date of the final order on the last execution petition, notice under O. 21, R. 22, Civil P. C. had to be given to the judgment-debtor. When this notice went to Perianna Chettiar, the grandfather and guardian-ad-litem of the defendant, it was found that he was dead. Thereupon, the decree-holder filed E. A. No. 342 of 1945 praying for the appointment of a guardian-ad-litem afresh for the judgment-debtor treating him still as a minor. Notice of this application for the appointment of a guardian went to the mother and maternal uncle of the defendant who returned the notice stating that the defendant had attained, majority and, therefore, they could not function as guardian-ad-litem. This return was attested by the decree-holder. Instead of having the defendant declared a major and sending notice to him, the decree-holder, apparently with a view to hasten execution proceedings, applied for the appointment of an officer of Court as guardian-ad litem of the defendant treating him as a minor and the Court passed an order appointing an officer of the Court as guardian-ad-litem of the defendant. Thereafter, the mother of the defendant filed E. A. No. 889 of 1945 before the executing Court stating that the judgment-debtor had attained majority and praying for the removal of the officer of Court appointed as guardian ad-litem and for service of notice on the defendant as a major. This application was opposed by the decree-holder. It was obviously the duty of the Court to have investigated the truth of the assertion made by the mother and found out for itself whether the defendant was a minor or had attained majority. Instead of pursuing this course the Court dismissed e. a. no. 889 of 1915 on the representation of the decree-holder that he would take the risk of the execution proceedings being impugned by the judgment-debtor in case he was a major. The result was that the defendant continued to remain on the record as a minor represented by an officer of the Court as guardian ad-litem. There was nobody to defend his interests and a court sale followed almost immediately. It is this sale that is now sought to be set aside. The learned Subordinate Judge dismissed the application of the judgment-debtor to set aside the sale relying on two decisions of this Court reported in Seshagiri Rao v. Hanumantha Rao, 39 Mad. 1031 : (a. i. R. (4) 1917 Mad. 318) and Gopalarayudu v. Gopalakrishnayya, 1945-