1. This second appeal by the plaintiff is against a reversing judgment of the District Judge, Ramanathapuram, and raises an interesting point of law. In execution of a decree obtained by defendants 2 and 3 against the appellant, the suit property was brought to sale and the first defendant, who was a stranger, was the purchaser The sale was on 25-3-1957, and was confirmed on 4-6-1957. The suit was instituted in October 1957, by the appellant for a declaration that the sale was fraudulent and void, and for a preventive injunction or in the alternative for recovery of possession. The appellant sought this relief on the ground that though the decree was passed on 16-7-1956, and no notice of the execution petition under Order XXI Rule 22 was required to be given to him, still, inasmuch as the settlement of the proclamation was without notice to him, contrary to the provisions of Order XXI Rule 66 C. P. C. the eventual sale in execution was a nullity, and that the failure to comply with the requirements of the said Rule 66 was not merely an irregularity. What appeared to have happened was that the decree-holders paid batta on 3-1-1957, and the process-server did not actually serve the notice in the proceedings settling the proclamation, but on 4-1-1957, he merely affixed the notice on the outer door of the appellant's house.
The trial Court was not prepared to accept that the process server went to serve the appellant at all, and it found that the sale was fraudulent and the alleged service of notice was as good as no notice at all. On that view, the trial Court held the execution sale to be void and granted a decree to the appellant for possession. On appeal by the first defendant-purchaser, the lower appellate Court considered that the service of notice by affixture, even assuming that the process server went to the plaintiff's house, was not a proper service, and that this was a material irregularity and not an illegality which would render the sale null and void, and that, in such circumstances, the proper remedy of the appellant was to have filed a petition under Order XXI Rule 90 Civil Procedure Code and that, he having not done so, the suit did not lie. The lower appellate Court, therefore, allowed the appeal and dismissed the suit. That is how the plaintiff has come to this Court in second appeal.
2. It is argued for the appellant that this is a case to which Order XXI Rule 90 will have no application, and that, therefore, the proper remedy is a suit. It is common ground that the execution petition which resulted in the sale was filed within 2 years of the date of the decree and that, therefore, no notice was required to be given to the judgment-debtor in the execution petition. It is also common ground that in the proceedings to settle the proclamation, notice is bound to be given to the judgment-debtor as required by Order XXI Rule 66. The finding of the lower appellate Court, as I mentioned, is that there was no proper service of notice on the appellant in those proceedings. Though the learned counsel for the purchaser wanted to attack this finding, in my view, the lower Appellate Court should have even gone further and agreed with the trial Court that there was no service at all of the notice in the proceedings for settlement of the proclamation. The lower appellate Court, without weighing the process-server's evidence, proceeded on the assumption that what he deposed was true. The trial Court appreciated his evidence and was not prepared to accept it. I think, in taking that view, the trial Court was right. If then there was no notice served upon the appellant under Order XXI Rule 66, the question directly arises as to whether the present suit is barred and that the appellant's only remedy was under Order XXI Rule 90. The argument for the appellant is that in terms that rule does not cover a breach of Rule 66, as Rule 90 is confined to setting aside sale on the ground of a material irregularity or fraud in publishing or conducting it.
It is said that the words ''publishing or conducting it' will not cover the proceedings for settlement of the proclamation. In one sense, it may appear that material irregularity in publishing a sale may take in the first step of settlement of a proclamation. This view may also appear to be supported by the fact that the whole set of rules, from Rule 64 to Rule 104, is preceded by the heading 'Sale Generally'. But, on a closer examination, I am inclined to the view that the words 'material irregularity or fraud in publishing or conducing it' cannot be extended to the material irregularity arising out of a breach of the requirement of Rule 66. Separate sets of rules arc framed under Order XXI, one set relating to settlement of proclamation and the other to the manner of publication of a proclamation of sale. Nevertheless, Rule 90 speaks of material irregularity or fraud in publishing or conducting a sale. The rule, to my mind, will not, therefore, cover any irregularity in the settlement of proclamation. That 1 find is also the view of a Division Bench of this Court in Neelu Nethiar v. Subramania Moothan, 11 Mad LW 59 : AIR 1920 Mad 481. The learned Judges there held that an objection to an execution sale on the ground that before the drawing up of the proclamation, the notice required to be given under Order XXI Rule 66 (2) Civil Procedure Code was not given to some of the judgment-debtors was not a matter relating to the publication or conduct of the sale within the meaning of Order XXI Rule 90. Following this view of the scope of Rule 90, I hold, disagreeing with the lower appellate Court, that the remedy of the appellant was not under Order XXI Rule 90 of the Civil Procedure Code.
3. A second argument for the appellant is that where execution is levied within 2 years of the date of the decree and therefore no notice of the execution petition is required to be given under Order XXI Rule 22, service of notice in the proceedings for settlement of proclamation is a condition for jurisdiction to execute the decree by bringing the judgment-debtor's properties to sale. No direct authority has been brought to my notice on this point. In Jagannatha v. Perumal, : AIR1955Mad233 Govinda Menon and Ramaswami, JJ., held that the jurisdiction to sell a property could arise in a Court only where the owner was given notice of the attachment and sale. On facts, it was found in that case that though the execution petition was filed within two years of the date of the decree, no notice was actually given of the execution petition to the judgment-debtor. In such circumstances, the learned Judges took the view that service of notice as required by Order XXI Rule 22 was a condition precedent to the jurisdiction of the Court to proceed with the execution and that failure to observe that rule and serve notice was not merely an irregularity, but would render the sale itself invalid as one without jurisdiction.
Learned counsel for the appellant contends that where the execution does not fall within the scope of Order XXI Rule 22, the first notice the judgment-debtor could get of an execution petition is under Order XXI Rule 66 and that if this first notice in such an execution is not given to the judgment-debtor, there is no means by which do should know the proceedings and that such a case should be equaled to the case of a failure to give notice under Order XXI Rule 22. In support, relianee is placed upon an obiter dictum in the judgment of Panchapakesa Aiyar, J., in Karunakarun Nair v. Chathu, : (1956)1MLJ47 . That was also a case where no notice was given under Order XXI Rule 66. But the learned Judge was inclined to think that nevertheless the judgment-debtor had knowledge of the execution by some other means. On that ground, he held that there was no prejudice by a breach of Order XXI Rule 66. In the course of his judgment, the learned Judge observed:
'...... there may be some rare eases where failure to issue a notice under Order 21 Rule 68 Civil Procedure Code to the judgment-debtor may make a sale held, without his knowing at all about any such proclamation of the sale, a nullity, though, in almost all these cases, the sales can also be set aside under Order 21 Rule 90 Civil Procedure Code for irregularity and consequent injury.'
The learned Judge went on:-
'Thus, where a notice under Order 21 Rule 22 Civil Procedure Code is not required, as the execution petition is filed within two years of the decree and where the notice under Order 21 Rule 66 is the very first notice which will go to the judgment-debtor, and such notice is not issued and the proclamation is drawn up and the sale held without the judgment-debtor being ever aware of the proclamation or the sale, then the sale for held will be a nullity and it will not be a case of mere irregularity and any knowledge about the sale or sale proclamation after the sale is over will not alter the matter.'
With this view of the learned Judge, I am inclined, with due respect, to concur, though the point did not arise in that ease for decision on the facts found in it. It is generally true that Rule 90 is intended to cover practically all cases of breach of the rules relating to the conduct and publishing of execution sales. As was pointed out in Vasudeva Kavu Patteri v. Marti Naicka, . Rules 54, 66, 67, 68 and 72 are pro visions which have been enacted for the purpose of fetching the best price possible and if there was a failure to observe any one of them the safe following thereon could in one sense be said to be illegal because illegality consists in, the violation of an express provision of law and that for such illegalities Rule 90 provided for a remedy and Rule; 92 prohibits such matters from being made a ground of attack in collateral proceedings by way of a suit. That was, however, not a case where the sale was treated as a nullity. The learned Judges in that case did not hold that rule 90 would also cover cases of the kind here in question.
4. Both on the ground that Rule 90 does not cover this case and on the ground that the sale for want of notice under Order XXI Rule 66 was a nullity, I am inclined to the view that the proper remedy of the appellant was not under the former rule.
5. Sri K. S. Desikan for the purchaser has strongly pressed upon me that even on the assumption that Rule 90 did not cover a failure to give notice under Rule 66 in such circumstances, the appellant's remedy was in any case an application Under Section 47 of the Civil Procedure Code and not a suit. His further argument is that, though a suit could, Under Section 47(2), be permitted to be converted into an application under that Section, it would, on the facts of this case, be out of time under Article 166 of the Limitation Act. This contention is urged on the supposition that the sale was not a nullity, but was effected by a mere irregularity and was therefore only voidable and such a sale was required to be set aside. It is also stated that any such question will be matter relating to execution, discharge or satisfaction of the decree I have already held that the sale in this case was void. That being the case, it did not require to be set aside. As a matter of fact. the suit itself was not for setting aside the sale, but for a declaration that the sale was fraudulent and void.
In fact, the appellant need not have asked for such a declaration but straightaway sought to re cover possession on an application that the sale was void in the particular circumstances In such circumstances, even granting that the proper remedy of the appellant was Under Section 47, the article that would be applicable is 181 and not Article 100. So much appears to be well settled so far as this Court is concerned. See Rajagopala Iyer v. Ramanujachariar, ILR 47 Mad 288 : AIR 1924 Mad 431 and Veeraraghavayya v. Venkataraghavareddi, 1917 2 Mad LJ 468 : AIR 1948 Mad 226 In Ramanna v. Nallaparaju, (S) : 2SCR938 the Supreme Court also ruled that when a sale in execution was inoperative and void an application by a judgment-debtor to have it declared void and for appropriate reliefs was governed by Article 181 and not Article 166
6. Mr K. S. Desikan argued the point that limitation on the basis that the appellant could have resorted to Section 17 Learned counsel con tended that the stranger-purchaser was but a re presentative of the judgment-debtor and the question as to the validity of the execution sale was one, therefore, falling within the scope of Section 47 of the Civil Procedure Code. On the view I have expressed on limitation, this question does not require to be decided for purposes of this appeal. Even if the remedy of the appellant is only Under Section 47, the suit, regarded as one such application, was well within time.
7. The second appeal is allowed. The judgment and decree of the lower appellate Court arc set aside and those of the trial Court are restored In the circumstances, there will be no costs. No leave.