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 ILR(1892) 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 ILR (1914) 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-debtor's 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 ILR (1917) 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 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)45MLJ413 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 ILR (1901) 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 cause unreasonable delay or would defeat the ends of justice, while there was no such provision in the Code of 1882; and that as there is now a discretion in the Court to excuse the notice it follows that the failure to give such notice must be a mere irregularity. I am not able to follow this reasoning. I do not appreciate how the failure to give such notice can have any different effect under the new Code to what it had under the old Code, merely because the new Code provides that in certain cases the Court can dispense with the notice. In my judgment the only effect of this sub-section is to give the Court jurisdiction in certain cases in which without it the Court would have none. Mallikarjan v. Narahari ILR (1901) B 337 is not an authority to the contrary, for in that case notice was served on a person whom the Court had ordered to be treated as the legal representative of a deceased party and who, it was subsequently held, was not the proper legal representative, and the Privy Council held that this was a mere irregularity as the Court was acting within its jurisdiction though wrongly. Rewa Mahton v. Ram Kishen Singh ILR 14 C 18 was relied upon as an authority against this view. In that case there were cross decrees in separate suits and execution was ordered on one of them without taking into account the other, although it was provided by Section 246 of the Code of 1877, now O. XXI, P. 18, that execution can only issue for the balance if any between the two decrees, and it was held by the Privy Council that this was an irregularity and did not render the sale void. Their Lordships held that the Court had jurisdiction to sell, and that the purchaser was no more bound to enquire into the correctness of the order for execution than into the correctness of the judgment upon which the execution was issued. This is an illustration of a case where the Court was acting within its jurisdiction on the proper interpretation of the section of the Code applicable, and does not assist in arriving at the proper interpretation of another section. It follows that the answer to the first question referred is that the sale is void.
2. The other question referred is what is the period of limitation that governs an application for relief where the property has been sold in execution and that sale is void. If the application is an application under the Code of Civil Procedure to set aside a sale in execution or a decree, the Article of the Limitation Act of 1908 applicable is 166 and the period of limitation is 30 days from the date of the sale. If not, the application is one for which no period of limitation is provided elsewhere and it will be governed by Article 181, the period of limitation being 3 years from the date when the right to apply accrued. Lord Davey delivering the judgment of their Lordships of the Privy Council in Khiarajamal v. Daim ILR (1904) C 296 a case where the Court had sold without jurisdiction the property of persons who were not parties to the proceeding or properly represented on the record--said ' as against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions it may be found in the judgment of Sir Barnes Peacock in Kishen Chunder Ghose v. Ashoorun (1863) 1 Marsh 647.' That is direct authority for the proposition that in such a case it is not necessary to apply to the Court to set aside the sale. If it is possible for the petitioner in this case to proceed without applying to set aside the sale he could avoid the harsh limitation imposed by Article 166. In my judgment he can do so. He could, but for the provisions of Section 47 of the Civil Procedure Code of 1908 bring a suit for possession of the property sold, and the purchaser would not be able to rely upon the Court sale as a defence, because that sale is a nullity and the Privy Council has held that it is not necessary to take any steps to set it aside. By reason of Section 47 all questions arising between parties to the suit relating to execution ought to be determined by the Court executing the decree, and not by a separate suit, and it has been held that the fact that a Court purchaser is a necessary party would not prevent the application of this rule. But this is only a question of procedure and the Court may treat the proceeding under this section as a suit subject to any objection as to limitation. It is unnecessary to consider whether the effect of this is that the period of limitation to be applied is the period provided by the Limitation Act in respect of applications or that provided in respect of suits; If the former, the period of limitation will be 3 years under Article 181 and if the latter, the 12 years provided in the case of suits to recover possession of immoveable property. I cannot agree with the view that all applications under Section 47 are governed by Article 166 nor do I think that the statements in cases to that effect are more than obiter dicta; the intention being to express the view, with which I agree, that if an application is an application to set aside a sale in execution of a decree it matters not whether the application is made under Section 47 or under Order 21, Rule 90. Seshagiri Rao v. Srinivasa Rao 38 MLJ 62 is a direct authority for the proposition that when a sale is absolutely void for want of jurisdiction the Article applicable is Article 181, and in my judgment in view of the decisions of the Privy Council referred to above that case was rightly decided.
3. The petitioner is the guardian of infants who were properly before the Court as defendants in the original suit, and their interest in the property was liable to be sold in execution in satisfaction of the decree, and they can only be permitted to recover possession of the property on payment to the purchaser of what he has paid together with interest thereon at 6 per cent. less any amount he may have received for mesne profits, and in the absence of agreements, this petition must go back to the Court of first instance to ascertain the amount and fix the date of payment and make the necessary order for carrying out this direction. In view of the fact that the petitioner chose to frame his application under Order 21, Rule 90, and to make unfounded charges of fraud against the respondent, there will be no costs here or below.
4. The facts of the case and questions referred to the Full Bench are stated in the Order of Reference.
5. The first question is whether the sale is void, no notice having been issued under Order 21, Rule 22. Three possible views may be taken on the effect of want of notice under Order 21, Rule 22 of the new Code.
(1) The want of notice is only an irregularity--This is the view taken by Oldfiled, J., in Visvanathan Chetty v. Somasundaram Chetty (1922) ILR 45 M 875 : 42 MLJ 422, and I agreed with this judgment.
(2) The sale is void--This is the decision of the Privy Council under the old Code in Raghunath Das v. Sundar Das Khetri (4), and it may be said that the addition of Clause (2) in the new Code does not make any difference when the mind of the Court was not applied to the need for notice.
(3) An intermediate view may be taken viz., if the case is one to which Clause (a) of Sub-section (1) of Rule 22 applies then the want of notice is merely an irregularity; and if Clause (b) applies the sale is void for want of notice. In this way Raghunath Das v. Sundar Das Khetri 27 MLJ 150 (PC) may be distinguished.
6. Now I confess there is something to be said in favour of each of these views. All that can be said in favour of (1) has been said by Oldfield, J., in Visvanathan Chetty v. Somasundaram Chetty 42 MLJ 422 (with which I agreed) and by Spencer, J., in Doraisamy v. Chidambaram Pillai : (1923)45MLJ413 .
7. Incidentally I may point out that the point does not strictly arise in Doraiswamy v. Chidambaram Pillai : (1923)45MLJ413 . There, the sale took place on 17th January, 1916. The judgment-debtor died on 16th December, 1915. The application for attachment, for sale must have been ordered and the proclamation of sale must have been settled before his death. It does not appear that an application for execution, had to be made or was made after his death, and if there was none, it cannot be said that Order 21 Rule 22, was violated. If the sale in that case was void it must be only on the ground that the judicial proceeding after the death of the judgment-debtor and without bringing any Legal representative on the record was void as held by Old-field, J., and me in Ragunathaswami Ayyangar v. Gopaul Rao : (1921)41MLJ547 but Spencer and Krishnan, JJ., dissented from this view. In the judgment of my Lord, my Lord has given reasons against adopting the reasons of the decision in Doraiswamy v. Chidambaram Chetty : (1921)41MLJ547 and of Spencer, J., in Visvanathan Chetty v. Somasundaram Chetty 42 MLJ 422.
8. (2) The second view was adopted in Shyam Mandal v. Satinath Bannerji ILR (1917) C 954 [dissented from by Spencer, J., in Doraiswamy v. Chidambram Pillai : (1923)45MLJ413 is supported by the Judgment of the Privy Council in Raghunath Doss v. Sundar Das Khetri (1914) ILR 42 C 72 (P.C.) and now my Lord the Chief Justice. I understand that my brother Waller, J., also agrees with this view.
9. (3) The third view was urged before Oldfield, J., and Myself and was rejected by us in Visvanathan Chetty v. Somasundaram Chetty 42 MLJ 422. As my Lord now points out there is something to be said in its favour, but the language of the Judicial Committee which docs not make any distinction between Clause (a) and Clause (b) of Section 248 of the old Code (corresponding to Order 21, R..22 of the present Code) prevents us from accepting it.
10. With no strong inclination of any one of the three views Mated above, and in order that our judgment may be unanimous, I would formally drop the conclusion I adopted in Visvanathan Chetty v. Somasundaram Chetty 42 MLJ 422 agree with my Lord and Waller, J., ore the first question referred to the hull Bench.
11. The second question referred to the Full Bench presents no difficulty. Once we are agreed that Raghunath Doss v. Sundar Doss Khetri ILR (1914) C 72 applies, that case is conclusive that the sale has not got to be set aside. Only if it has to be set aside, Article 166 applies. If not, Article 181, when the matter arises, under Section 47 or Article 144 when the question arises in a suit [as in Raghunath Das v. Sundar Das Khetri ILR (1914) C 72] would apply. I agree with my Lord's proposed answer to the second question and with the further order as to mesne profits and costs.
12. I agree entirely with the Judgment of the learned Chief Justice and have nothing to add to it.