The proviso to Rule 90 of Order 21, Code of Civil Procedure does not apply to grounds that arise after the sale.

Sinha, C J—This application in revision is directed against the concurrent orders of the Courts below dismissing the Petitioner's application under Order 21, Rule 90, Code of Civil Procedure for setting aside the sale of immovable property.

2. The Courts below have dismissed the application on the ground that the proviso specially added by this Court to Rule 90, Order 21, of the Code of Civil Procedure comes into operation. The proviso is in these words: Provided also that no such application for setting aside the sale shall be entertained upon any ground which could have been, but was not put forward by the Applicant before the commencement of the sale.

3. One of the grounds raised by the Petitioner attacking the sale was that it had been held in complete disregard of the provisions of Rule 68 of Order 21 of Code of Civil Procedure in so far as it was held before the expiration of 30 days from the date that the sale proclamation was published. The lower Appellate Court has found that this ground is well founded, but in its view this was a ground which should have been taken before the sale was held. The Court, however, felt bound to decide the application against the Petitioner on the ground that this objection should have been raised before the commencement of the sale in terms of the added proviso quoted above.

4. In my opinion, the Courts below have completely misdirected themselves in coming to that conclusion. The grounds contemplated by the added proviso are grounds which would be available to the judgment-debtor or the person whose property has been put up for sale even before the sale had been held, for example grounds to the effect that the notice under Rule 22, Order 21 had not been served or that the processes of attachment & sale had not been published as required by law. But the ground that the sale was held before the expiration of 30 days from the date of the publication of the sale proclamation would come into existence only after the sale and therefore this could not be a ground which could be said to be available to the judgment-debtor before the commencement of the sale. It is obvious, therefore, that the proviso in question does not attract cases of this kind.

5. But it has been argued by the learned Counsel for the Petitioner that the Courts below have come to that conclusion on a question of law, and that that conclusion may be right or wrong but the decision does not attract the revisional jurisdiction of this Court. In my opinion, there is no substance in this contention. It. was tried to be supported by reference to the decision of their Lordships of the Judicial Committee in-' Venkatagiri v. H.R.E. Board, Madras, 1949 AIR(PC) 156(A).

In the instant case the Courts below have refused to entertain the Petitioner's application on the ground that it is barred by the provisions lot' the proviso to Rule 90 of Order 21 of Code of Civil Procedure whereas on a proper construction of the statute there is no such bar. This is therefore a case where the Court vested with jurisdiction to entertain the case has wrongly refused to entertain it. It is clearly a case which attracts the revisional jurisdiction of this Court under Section 115, Code of Civil Procedure It is not a case where while deciding a matter on merits the Court with jurisdiction has come to a conclusion on facts or in law which may be erroneous or unsound. It is a case where the Court has refused to exercise jurisdiction vested in it by law on an erroneous interpretation of the statute giving the Court that jurisdiction. In that view of the matter the decision of their Lordships of the Judicial Committee is out of the way of the Petitioner.

6. It has not been contended that the infringement of Rule 68 of Order 21, Code of Civil Procedure does not entitle the Petitioner to have the sale set aside. The terms of that rule are imperative, inasmuch as the rule prohibit'' a sale taking place before the expiration of at least 30 days from the date of t