Non-compliance with Order 21, Rule 22 rendered the sale void.

Walter Salis Schwabe, K.C., C.J.

1. If this matter were free from authority I should incline to the view that non-compliance with the provisions of Order 21, Rule 22 was a material irregularity, and not an illegality which would make the subsequent sale a nullity. in England there was a rule of Common Law that judgments after the lapse of a year and a day could not be executed unless an order for what was known as a scire facias was first obtained. There are authorities to the effect that the disregard of that rule rendered a subsequent sale in execution voidable and not void Blanchenay v. Bart 4 QB 707 and Good Title v. Had Title 9 Dowl. 1009, and the same rule applies in America--See Freeman on Void Judicial Sales, page 97. But in my Judgment there are authorities here to the contrary which preclude such a view being taken here. here. In Gopal Chunder Chatterjee v. Gunamani Dasi (1892) ILR 20 C 370 their Lordships of the Calcutta High Court laid down that a notice under Section 248 of the Code of Civil Procedure of 1882 was necessary in order that the Court should obtain jurisdiction to sell a property by way of execution as against the legal personal representatives of the deceased judgment-debtor. In Raghunath Das v. Sundar Das Khetri (1914) ILR 42 C 72, the judgment-debtor had become an insolvent and a sale in execution took place without proper notice under the same section and their Lordships of the Privy Council held that the sale was a nullity. In the case before us no notice has been given of execution proceedings to the infant petitioners although a year had elapsed since the decree, but I can see no difference in principle between the position of legal representatives of a deceased judgment-debtor, or the Official Assignee of the judgment-debtors estate, and that of a party to the suit who has not himself been served with notice of an application for execution more than a year after the decree, and is ignorant thereof. The provision for notice in the two cases of legal representatives and of parties when more than one year has elapsed are contained in the same rule, O. XXI, Rule 22, which is in the same terms as Section 248 of the Civil Procedure Code of 1882, and 1 do not think that it is possible to hold that in one case failure to give notice is a mere irregularity while in the other it results in the Court having no jurisdiction to sell at all. In Shyam Mandal v. Sitinath Banerjee (1917) ILR 44 C 954 Mookerjee and Cuming, JJ., held that a proper notice under O. XXI Rule 22 after the lapse of one year from the decree was the very foundation of the jurisdiction itself, and that failure to give it rendered a sale inoperative even as against a stranger. It is right to point out that in that case an application was made to prevent the confirmation of the sale before it was completed and no question of limitation arose, but the grounds of the decision are quite clear and unless we disagree with them they are conclusive of this point. In Visvanatham Chetty v. Somasundaram Chetty (1922) ILR 45 M 875 : 42 MLJ 422 a Bench of this Court held that the non-issue of notice under O. XXI, Rule 22 was a mere irregularity, and not an illegality affecting the jurisdiction of the Court to execute the decree, and in Duraswami v. Chidambaram Pillai (1923) 45 MLJ 413 Spencer, J., took the same view; and Krishnan, J., stated that he would have been in favour of referring the matter to a Full Bench but for the decision of the Privy Council in Mallikarjan v. Narahari (1901) ILR 25 B 337 which he considered rendered it unnecessary to do so. The ground on which the Privy Council cases referred to above were sought to be distinguished from this case, was that O. XXI, Rule 22 differed from Section 248 of the Civil Procedure Code of 1882 in that, O. XXI, Rule 22 provides that the Court can issue process in execution without issuing the prescribed notice, if for reasons to be recorded, it considers that the issue of such notice would caus