1. In Small Cause Suit No. 1032 of 1886 on the file of the Sub-Court at Ellore, plaintiff obtained a decree against petitioner's brother Subbarazu, and upon his death made his widow a party to execution proceedings. He then attached certain property and brought it to sale, at which petitioner before us, became purchaser. Thereupon the brother of the judgment-debtor applied for the sale being set aside and stated that as undivided brother he was the judgment-debtor's legal representative; that the property sold in execution wan joint family property, and that there was material irregularity in conducting and publishing the sale. He did not, however, make the purchaser a party to his application, and the District Munsif held that no material irregularity was proved, and dismissed the application. On appeal, the Judge made the purchaser a party to the proceedings, and, being of opinion that there was irregularity in publishing the sale, cancelled the order refusing to make the appellant representative of the judgment-debtor and the order confirming the sale. The purchaser applied to this Court for the order being set aside under Section 622, Civil Procedure Code. Mr. Justice Parker rejected his application on the ground that the Judge did not set aside the sale, though he intended to do so, and that, as the purchaser was in possession, he was not prejudiced. Hence this appeal under the Letters Patent.
2. The District Judge recorded no finding that by reason of the irregularity in publishing the sale any loss was sustained, and in the absence of such finding, it was not competent to him to set aside the sale. Although the purchaser was made a party on appeal, the Judge was in error in finding that there was irregularity in publishing the sale upon evidence recorded by the District Munsif when the purchaser was not a party to the proceedings, withoutgiving him an opportunity to test the evidence by cross-examination and to cite rebutting evidence, if any. Again, the application shows that if the property attached and sold was joint as stated therein, it must have survived to the applicant on the death of his brother and thereby become his exclusive property. When a person seeks to set aside a sale by reason of a title adverse to that of the judgment-debtor at the date of attachment, his proper remedy as observed in Asmitunnissa Begum v. Ashruff Ali I.L.R. 15 Cal. 488 is a regular suit and not a proceeding under Section 311. If the property was, on the other hand, the separate estate of the deceased judgment-debtor, his widow was his legal representative. We do not see our way to confirm the order of the District Judge or of the learned Judge who upheld it. We set aside the order of the District Court and restore that of the District Munsif. The respondent will pay appellant's costs in this Court and in the Lower Appellate Court.