JUDGMENT
1. This appeal arises out of proceedings in execution of a decree.
2. It appears that certain persons referred to as the “Banikyas’ brought a suit upon a mortgage against the appellants before us and certain other persons. Their suit against the appellants was dismissed with costs, but they obtained a decree upon a mortgage against other persons. The appellants in execution of their decree for costs against the “Banikyas” attached the mortgage decree they had obtained against the other persons, got themselves substituted as attaching decree-holders and proceeded to execute the decree. The mortgage-decree was for about Rs. 5,000. The appellants, however, executed their decree for realising only the amount of costs due to them viz, Rs. 259, and a share of certain property out of the mortgaged properties was sold and the decree for costs was satisfied with the sale-proceeds.
3. The judgment debtors applied to have the sale set aside under Order XXI, Rule 92 and Section 47, Civil Frocedure Code, one of the grounds alleged being that the decree could not be executed only for the amount of costs.
4. The Court of first instance dismissed the application treating it as one under Order XXI, Rule 90. On appeal the learned Judge observed that there was “no machinery” for making a declaration that the sale was illegal under the provisions of Section 47. On second appeal to this Court, the learned Judges (Woodroffe and Huda, JJ.,) were of opinion that the case had been fought out in the First Court as if it were a case under Order XXI, Rule 90, So far as the application under Section 47 was concerned, the learned Judges expressed the opinion that their judgment would not debar the appellants from proceeding in the matter under Section 47 if they had any rights under that Section Thereupon they made the present application under Section 47.
5. The Courts below have held that the sale was void and accordingly set it aside under Section 47.
6. We do not think that the sale was absolutely void. It was certainly irregular and could be set aside if proper proceedings were taken for the purpose. The judgment-debtors could waive the irregularity and we do not think, therefore, that the sale can be treated as a nullity. Upon a Consideration of the orders of this Court, however, we think that the question whether the applicant is entitled to have the sale set aside under Section 47, Civil Procedure Code, was left open by this Court, and the present application seems to have been made in pursuance of that order. The application was made within three years of the data of the sale and, therefore, was not time-barred.
7. It has, however, been contended on behalf of the appellant that the application was made after the confirmation of the sale and that, unless the respondents can show that they had no notice of the sale or the confirmation thereof by reason of fraud or otherwise, they are precluded by the order confirming the sale from questioning the validity thereof under Section 47.
8. This part of the case has not been gone into by the lower Appellate Court.
9. Our attention has been drawn by the learned Pleader for the appellant to the fact that the sale was attacked also on the ground that the decree-holders put up a share of one of the properties to sale. It is said that under the decree the appellants were entitled to sell the property whish was not encumbered, and that the share in dispute which was put up to sale was not encumbered. The Pleader for the respondent says that that is not so. This question, therefore, will also have to be gone into by the lower Appellate Court.
10. We accordingly set aside the order of the lower Appellate Court and send the case back to that Court in order that the above questions may be gone into and the appeal disposed of according to law. The Court below may take further evidence, if necessary.
11. Costs–two gold mohurs–to abide the result.