The plaintiff is the appellant. He owned a house which had been usufructuarily mortgaged to the second defendant for a sum of Rs. 170. A suit for the recovery of a money debt was filed by the first defendant against the plaintiff in the Panchayat Court of Cumbum and a decree was obtained. The decree was transferred for execution to the District Munsiff’s Court of Markapur as the house belonging to the judgment-debtor was situated within the territorial jurisdiction of that Court. In the execution sale held on the 16th October, 1942, in E.P. No. 28 of 1942 the mortgagee second defendant purchased the house subject to his own mortgage for a sum of Rs. 155. The plaintiff thereupon brought the suit out of which this appeal arises to set aside that Court sale on the ground that the decree was obtained by fraud and that there was also fraud in connection with the sale proceedings. The fraud that was alleged in connection with the decree was that although she had permanently left Cumbum and was residing in Markapur, the suit was filed in the Panchayat Court at Cumbum which had no jurisdiction to entertain the suit against her. With regard to the sale, the fraud that was alleged was that there had been an understanding between the first defendant and the plaintiff that the former should receive from the latter a sum of Rs. 50 in full satisfaction of the decree and it was in pursuance of that understanding that an application was made jointly by both to the Court on the 17th August, 1942, to which date E.P. No. 28 of 1942, had originally stood posted, to adjourn the sale for a period of two months in order to enable her to pay the said sum. The plaintiff’s contention is that sometime prior to the 16th October, 1942, to which date the sale was posted the plaintiff paid a certain portion of the agreed sum to the first defendant and the first defendant agreed to give her some further time for the payment of the balance. He also undertook to see that the sale did not come off on the 16th October, 1942. Depending upon that assurance she did not attend the Court on the 16th October, 1942, and on that day the second defendant in collusion with the first defendant purchased the property in the Court auction which was held for Rs. 155 subject to his mortgage, and the sale was subsequently confirmed by the Court. She contends that the house is actually worth Rs. 600 and the sale was brought about as a result of fraudulent collusion between the two defendants against her. The first defendant in his written statement supported the plaintiff’s case and stated that he had given a letter to the second defendant on the 15th October, 1942, to be delivered to his pleader to obtain a further adjournment of the sale and that that letter was fraudulently suppressed by the second defendant who, knowing all the circumstances, fraudulently purchased the property in his own name. The second defendant denied all these allegations and stated that there was no fraud either in connection with the decree or in connection with the sale. He alleged that there was collusion between the plaintiff and the first defendant and he also contended that the suit was not maintainable. Several issues were framed concerning the allegations of fraud and material irregularity with reference to the sale and concerning its legality. The third issue which was in the following effect: “Whether the suit to set aside the execution sale is maintainable in law” was tried by the trial Court as a preliminary issue and it was held that Order 21, rule 92 (3) of the Civil Procedure Code was a bar to the suit and that consequently it was not maintainable. The suit was dismissed by the trial Court and the learned District Judge on appeal agreed with the view taken by the trial Court, and hence this appeal.

The first objection with regard to the maintainability of the suit is based upon the bar provided in sub-rule (3) of Order 21, rule 92. Rule 90 provides for an application to set asid