Jwala Prasad, J.

1. This appeal is directed against the order of the Subordinate Judge of Monghyr, dated the 17th April 1920, reversing that of the Munsif, dated the 1st of December 1919.

2. The appeal relates to an execution sale. The appellants obtained a rent-decree against the respondent on the 30th of January 1917. Execution was levied on the 8th of March 1919. Notice under Order XXI, rule 22, was directed to be issued and was returned by the peon as duly served. On the 4th of April 1919, the Court recorded the following order in the order sheet:--

"Notices served and proved. Process filed, Talbana has been affixed on the execution petition. Issue attachment fixing 28th April 1919 for return."

3. Attachment and notice for settlement of sale proclamation under Order XXI, rule 66, were issued, and the Court passed the following order on the 22nd of May 1919, after the return of the service of processes:--

"Notice served and proved."

4. The decree holders stated the value of the property to be Rs. 61, and the Court fixed it at Rs. 140. The sale proclamation was accordingly issued, stating the value of the property to be Rs. 140. The property was Bold on the 8th of July 1919 and was purchased by the decree-holders for Rs. 70-7-9. The sale was confirmed on the 9th of August 1919. The judgment debtor made an application for setting aside the sale, on the 1st of November 1919, stating that (1) the zaidsal (notice) (under Order XXI, rule 22) and other processes were not served and that the processes were fraudulently returned showing service of the notices and the processes, and that the judgment-debtor was kept out of the knowledge of the execution proceedings and the sale on account of the fraud of the decree holders, and (2) that on account of the non service of the processes and the fraudulent acts of the decree-holders, the price fetched at the auction sale was inadequate, which caused material injury to the judgment-debtor. The application was as one under Order XXI, rule 90.

5. The Munsif overruled all the aforesaid objections of the judgment debtor and held that all the processes in the execution, namely, notice under Order XXI, rule 22, and attachment and sale proclamation were duly and properly served and that there was no fraud in the service of the processes or any irregularity of any kind in the publication or the conduct of the sale. He also held that the application of the judgment-debtor for setting aside the sale was barred by limitation, it having been made more than 30 days from the date of the tale and no fraud having been proved, the judgment debtor being fully aware of the rent decree and also of the rent for the years 1324 and 1325 not having been paid. As to the price fetched at the sale, he held that though it was somewhat inadequate, yet the value of lands in the year of the sale was altogether different from the year preceding, when lands used to be sold for nominal- consideration. He virtually held that the price fetched wan not inadequate and no injury was caused to the judgment-debtor.

6. On appeal, the learned Subordinate Judge set aside the decision of the Munsif on all the points. He held that the service of notice under Order XXI, rule 22, was not proved, inasmuch as the peon and the witnesses to the service were not examined, and from the report of the peon it appeared that the judgment debtor was not found and that Ramzani, his brother, who lived with him, refused to take the notice and consequently it was stuck on the northern portion of the house. The learned Subordinate Judge was of opinion that the manner in which the service purports to have been effected was not proper, inasmuch as efforts should have been made to serve the process personally upon the judgment debtor, and the decree-holder did not care to make full enquiry as to the judgment-debtor's whereabouts. He also held that the attachment and the sale proclamation were also not proved to have been served, the material witnesses to prove the service not having been examined. As to the value of the property, he held that the decree-holders purchased it even at a less price than that fixed by the Court and stated in the sale proclamation and that the price was inadequate, which was due to the irregularity in the publication of the sale. As to limitation, the learned Judge held that the fact that notice under Order XXI, rule 22, was not proved to have been served, brought the case within the purview of section 47 of the Code of Civil Procedure and that the period of limitation applicable to it was three years under Article 181, upon the principle of the decision in the case of Ram Kinkar Tewari v. Sthiti Ram Panja 40 Ind. Cas. 221 : 27 C.L.J. 525. As to fraud, it is well to quote the words of the Subordinate Judge, which run as follows:--"He (Munsif) has evidently not believed the judgment-debtor's story of fraud. He has relied on Kailash Chandra Haldar v. Bissonath Patamanik 1 C.W.N. 67. But in cases of this nature there cannot be evidence of direct fraud. We have to gather it from these circumstances. The decree-holder gave different valuations in different processes. He never cared to make full enquiry as to the whereabouts of the judgment debtor. He got the processes served in a haphezard manner. So that no bidders came to bid at the sale. The value was fixed at Rs. 140 and the properly was purchased for Rs. 70. These things, I think, amount to fraud."

7. The whole thing turns upon our decision as to whether the above finding of the learned Subordinate Judge is a legal finding of fraud so as to vitiate the proceedings in execution and invalidate the sale held under them. The Munsif clearly held that the fraud alleged was not proved. The Subordinate Judge does not find when and how the fraud was committed and an to whether the judgment-debtor was kept out of the knowledge of the execution proceedings and the sale so as to bring the case within the terms of section 18 of the Limitation Act. The petition has been read to as, and we fail to observe any distinct allegation of fraud as in required to be stated in an action based upon fraud. A vague or general allegation of fraud cannot be accepted, but the party relying upon fraud must state seriatim and in detail the facts constituting fraud. He must have further, in a case of this kind, clearly stated in the petition as to how he was kept from the knowledge of the execution proceedings and the sale, and how this fraud was practised and how he came to know of the sale alleged in the petition, in the absence of a finding on these points, the finding recorded by the Subordinate Judge of a vague and general character cannot be of any avail to the judgment-debtor in having the sale act aside. We do not find a single word in the judgment Baying that the judgment-debtor was kept from the knowledge of the execution proceedings and the sale. The learned Subordinate Judge simply finds that the decree-bolder did not care to make fall enquiry as to the whereabouts of the judgment-debtor and he got the processes served in a haphazard manner. He has at best shown that the decree-holder was not diligent, but want of diligence is not a fraud. It cannot point to an evil motive to get a thing to which a man is not entitled. The report of the service of notice under Order XXI, rule 22, was submitted by the peon, stating the manner in which the process was served. If at all it shows anything, it shows negligence of duty by the peon, or inattentiveness on the part of the Court concerned, but it cannot possibly show any mala fide motive on the part of the decree-holder. Therefore, the finding of fraud is not a legal one and the Subordinate Judge did not properly and legally displace the finding of the Munsif that the judgment-debtor tailed to prove such a fraud as would entitle him to the extension of the period provided for by the Limitation Act. The application was made more than 30 days from the date of the sale. It was, therefore, obviously tarred by time under Article 166 of Schedule II of the Limitation Act, which states that in order to have a sale set aside in execution of a decree, an application should be filed within 30 days from "the date of the sale.

8. The learned Subordinate Judge was, therefore, wrong in setting aside the sale on the ground of material irregularity in the publication or conduct of the Kale, resulting in a material injury to the judgment-debtor.

9. As to the effect of the finding of the learned Subordinate Judge on the irregularity of service of the notice under Order XXI, rule 22, he appears to have misconceived the principle of the decision in the case of Ram Kinder Tewari v. Sihiti Ram Pania 40 Ind. Cas. 221 : 27 C.L.J. 525. There was an omission to servo a notice under section 248 of the old Code of Civil Procedure, 1882, corresponding to Order XXI, rule 22 of the present Code of Civil Procedure, and upon the previous decisions it was held that the sale wan without jurisdiction, inasmuch as the notice under Order XXI, rule 22, is the foundation of the execution of a decree presented more than a year after the date of the decree. In the present case there was no omission at all. The decree-holder was directed to have the notice served. He did comply with the direction of the Court and the Court's officer, namely, the peon, served the notice on behalf of the Court. That was a matter, therefore, between the Court and its officer. The Court thereafter accepted the service return and noted in the order sheet that the service was duly proved. After that order, there was no want of jurisdiction to execute the decree by the subsequent provision in Order XXI, namely, by attachment and sale of the property. An irregularity in the service of a process is quite a different thing from the absence of the issue of any such process. The one relates to procedure, and the other goes to the root of the jurisdiction of the Court. Assuming for the sake of argument that the decision of the Court, recorded in the order-sheet, that the notice was duly and properly served, was wrong, still the Court had jurisdiction to decide the question of the service of notice rightly and also wrongly. The principle was well enunciated in the case of Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 27 I.A. 216 : 10 M.L.J. 308 : 7 Sar. P.C.J. 739 (P.C.). The application to set aside the sale was headed under Order XXI, rule 90, and the allegation in the application relating to the notice under Order XXI, rule 22, was with a view to obtain the principal relief, namely, to set aside the sale on the ground of irregularity in the notice not having been properly served. In the petition there was no allegation that the notice under Order XXI, rule 22, was not at all served, but it was simply stated that the service of the notice was fraudulently made in order to keep the judgment-debtor from the knowledge of the execution proceedings. No doubt, in the case referred to above, Ram Kinkar Tewari v. Sthiti Ram Panja 40 Ind. Cas. 221 : 27 C.L.J. 525, his Lordship, Mookerjee, J., observed that the application in that case for setting aside the sale was governed by section 47 of the Code of 1908 and the period of limitation would be that provided by Article 181 of the First Schedule, but the reason for the decision is given in the preceding line, which runs as follows:--"This, consequently, is not a case where the Court is invited to set aside the sale merely on the ground of irregularity in publication or conduct of sale. Here every process prescribed by the Legislature with a view to apprise the judgment-debtors or their representatives that execution was to proceed against them had been fraudulently suppressed." Then comes the passage--"The case is thus governed by section 47 of the Code of 1908," etc. Lastly it is observed that "This is pre-eminently a case where section 18 of the Limitation Act applies."

10. If the element of fraud, so far as the notice under Order XXI, rule 22, is concerned, is taken away, the allegation with respect to it amounts only to an allegation of irregularity and does not go deep enough to attack the foundation of the execution or the jurisdiction of the Court. The execution of the decree by reason of the omission to serve the notice under Order XXI, rule 22, was not at all attacked. As observed above, the allegation relating to the irregularity in the mode of the service of notice was, therefore, made with a view to attack the sale as being irregular. Virtually, therefore, the application was one to have the sale set aside in execution of the decree, and such an application is clearly governed by Article 136 of the First Schedule of the Limitation Act. That Article does not say that it will apply only to an application under Order XXI, rules 88 to 90, but it is a general one and governs all applications, based upon whatever grounds, to have an execution sale set aside. In thin view it appears to me that the application, even so far as it rests upon the irregularity in the service of the notice under Order XXI, rule 22, is governed by Article 166 of the Limitation Act and the limitation is 30 days from the date of the sale, unless the applicant proved that he was prevented from the knowledge of the execution sale by the fraud of the decree-holder. I am fortified in this view by the decision in the cases of Satish Chandra Kanungoe v. Nishi Chandra Dutta 64 Ind. Cas. 431 : 48 C. 975 and Pasumarti Payidanna v. Ganti Lakshminarasamma 29 Ind. Cas. 314 : 36 M. 1076 at p. 1085 : 28 M.L.J. 525, in the latter case, Sadasiva Aiyar, J., at page 1085, observed--"Section 18 of the Limitation Act would not help him in getting an extension of the 30 days unless, after the date of the fraudulent sale, the decree-holder and the purchaser kept him by fraud from the knowledge of his right to make the application."

11. The decision of the Subordinate Judge is, therefore, manifestly incorrect.

12. It has, however, been urged that the appeal to this Court is incompetent under Order XLIII (j), read with section 104, clause (2) of the Code of Civil Procedure. The ground for the contention is, that the application to have the sale set aside and the order passed by the Subordinate Judge setting aside the sale were under Order XXI, rule 90. Therefore, the appeal to the Subordinate Judge was competent under clause (j), but as a second appeal to this Court, is incompetent under sub-section 2 of section 104. This would be so if the application had been simply an application under Order XXI, rule 90, but it is conceded that the application to have the Bale set aside was a combined application under Order XXL. rule 90, as well as under Order XXI, rule 22. It is also conceded that the appeal to this Court, so far as the decision of the lower Appellate Court under Order XXI, rule 22, is concerned, is competent, but it is said that this Court has no power to interfere with the decision of the Court below so far as it deals with the irregularities in the publication and conduct of the sale and the resulting injury to the judgment-debtor. We concede that we cannot disturb now the findings of fact arrived at by the lower Appellate Court, but surely we have got jurisdiction to deal with the application of the decree-holder and the decision of the Court below upon that application setting aside the sale under section 47 of the Code. We have some to the conclusion that the judgment of the Court below relating to the fraud is illegal and is liable to be set aside. The entire case will, therefore, be dealt with in the second appeal, for the remedy of the losing party, affected by the decision of the Subordinate Judge, cannot be divided into parts. Even if it be held that the order of the Subordinate Judge relating to the irregularity in the publication and conduct of the sale under Order XXI, rule 90, is not appealable, yet this Court, dealing with the appeal properly entertainable under section 47 of the Code, tan deal with the application under Order XXI, rule 90. The Court below has committed material irregularity and illegality in assuming jurisdiction over the application, when according to the finding of the Munsif it was barred, inasmuch as the judgment-debtor failed to prove that there was any fraud and the application was on the fane of it barred by limitation. We, therefore, overrule the contention of the judgment-debtor.

13. We set aside the order of the learned Subordinate Judge and restore that of the Munsif. The appeal is accordingly decreed with costs.

L.C. Adami, J.

14. I agree.