Judgment

SHELAT, J.:- The respondent had obtained a decree for Rupees 9000/- and odd against the appellant. In execution proceedings taken out by him, the appellant s one-fourth share in a house was put up for sale and a proclamation setting out the date and hour when the sale would be held was duly issued. The sale, however, was postponed to July 30, 1956 at the instance of the appellant and on his offering to pay a part of the decretal amount. At the auction sale held on the adjourned date the respondent himself purchased the said one fourth share of the appellant for Rs. 8000/-. The appellant filed an application for settine aside that sale under O. XXI, Rule 90 of the Code of Civil Procedure on the ground that contrary to the provisions of Rule 69 of that Order, the notice relating to the adjourned auction sale did not set out the hour when the auction would be held though the original proclamation under which the auction sale was to be held on the earlier date specified both the hour and the date. The appellant contended that the failure to mention the hour contravened Order XXI, Rule 69 and that such a contravention was a material irregularity which vitiated the sale. The objection was overruled by the Execution Court. The appellant thereupon filed an appeal in the High Court where a single Judge upheld the objection holding that the failure to set out the hour amounted to a material irregularity, in consequence whereof the appellant had been prejudiced by the sale having fetched too low a value. On these findings the learned Judge allowed the appeal and set aside the auction sale. Aggrieved by the said order, the respondent filed a Letters Patent appeal under Cl. 10 of the Letters Patent of the Allahabad High Court and Rule 5 of Ch VIII of the Rules of the High Court. A Division Bench of the High Court reversed the order passed by the learned single Judge and allowed the appeal. Following the Full Bench decision of that High Court in Standard Glass Beads Factory v. Shri Dhar, AIR 1960 All 692 the Division Bench rejected the appellant s contention that no Letters Patent appeal lay against such an order and held that the order of the learned single Judge was a judgment within the meaning of Cl. 10 of the Letters Patent. The Division Bench further held that even assuming that the sale suffered from a material irregularity the learned single Judge was in error in holding that the appellant had established any prejudice to him in consequence of that irregularity. The order of the learned single Judge was reversed and the said sale was upheld. On the High Court refusing a certificate, the appellant obtained special leave from this Court and filed the present appeal.

2. In support of the appeal counsel for the appellant raised two points. (1) that the said order of the learned single Judge was not a judgment within the meaning of Cl. 10 of the Letters Patent and hence no Letters Patent appeal could be filed thereunder, and (2) that the said sale suffered from a material irregularity which caused substantial injury to the appellant and was therefore liable to be set aside. Counsel cited certain decisions in support of the contention that the order of the learned single Judge was not a judgment within the meaning of Clause 10 of the Letters Patent. Some of these decisions, however, are under Sections 109 and 110 of the Code of Civil Procedure and Articles 133 and 134 of the Constitution which would have no bearing on the construction of Clause 10 of the Letters Patent. But before we enter into the controversy as to the meaning of the term judgment in Cl. 10 it would be necessary to remember that the respondent having been declared as the highest bidder became the purchaser of the appellant s one fourth share in the said property. No doubt the sale had to be confirmed by the Court under Rule 92 of Order XXI before it could become absolute and in the meantime the appellant could apply under Rule 90 to have it set aside. If t