(Prayer: Appeal (disposed of on 4-3-1946) against the decree of the Court of the Subordinate Judge of Cocanada in A.S. No. 47 of 1944 preferred against the decree of the Court of the District Munsif of Cocanada in O.S. No. 428 of 1942.)

The respondent in this second appeal obtained a decree for arrears of rent due in respect of holding No. 88 in the village of Somapara in the Pittapur estate in L.S. No. 251 of 1938 on the file of the Deputy Collector Cocanada, against the appellant and others, and in execution of this decree, an extent of one acre and 24 cents in that holding was brought to sale as property belonging to the present appellant and it was purchased by the respondent on the 26th October 1941. The respondent and his alienee (the sixth defendant) were prevented from obtaining possession of the property and on the allegation that there was a trespass by the defendants subsequent to the delivery, the respondent brought a suit out of which the present appeal arises for recovery of possession of the entire property from defendants 1 to 5 and 7 to 9.

Though the entire extent of one acre and 24 cents was described as belonging to the appellant, it is now common ground that one acre of that extent belongs to defendants 2 to 5 and only 24 cents belong to the first defendant (appellant). The District Munsif of Cocanada found that defendants 2 to 5 had not been served with any notice of execution; in fact the property had been brought to sale as the property of the first defendant. He therefore held that the sale was void in respect of the one acre of land belonging to defendants 2 to 5; but he found the sale to be valid in respect of the 24 cents belonging to the first defendant and granted a decree against him in respect thereof. There was an appeal by the first defendant and the learned Subordinate Judge has confirmed the decision of the District Munsif. The second appeal is by the first defendant.

The only point which requires consideration in this second appeal is whether the sale in its entirety should be set aside because of lack of notice to defendants 2 to 5 or should the sale be held valid in respect of the 24 cents belonging to the first defendant.

There is very little of authority on this question. The case in Thayammal v. Subramania Gurukkal (69 M.L.J. 850=42 L.W. 699), appears to be the nearest in point. In that case the plaintiffs were entitled to a fourth share in the holding while defendants 1 to 3 were entitled to the remaining shares. The entire holding was sold for arrears of rent; but the plaintiffs were not served with notice of the sale. Defendants 1 and 2 were personally served with notice of sale. On these facts the Courts below set aside the sale in respect of the entire extent. The auction purchaser preferred a second appeal to this Court. It was contended by him that the sale must be set aside only as regards the plaintiffs shares and not in its entirety, and this contention was accepted by Varadachariar, J. No doubt in that case defendants 1 to 3 had not only not prayed for the setting aside of the sale in respect of their shares but they had even prayed that the plaintiffs suit should be dismissed with costs. The learned Judge characterises their conduct or misconduct as being dishonest, but I do not consider that his decision rests on this circumstance only. The learned Judge repels the argument that service of notice under S. 112 is a matter going to the jurisdiction of the selling officer and, if all the necessary pre-requisites had not been complied with, he must be held not to have any jurisdiction, and it must follow that the entire sale is invalid. The learned Judge modified the decree of the Courts below by setting aside the sale so far as the plaintiffs share is concerned. He incidentally relied on certain observations of Ramesam, J., in Kootoorlingam Pillai v. Sennappa Reddiar (61 M.L.J. 203 at 206=34 L.W. 94). These observations were no doubt obiter but support the view taken by the learned Judge.

In the absence of any other authority I feel bound by the above decision. The analogy furnished by cases decided under the Code of Civil Procedure supports the same view. In Srischandra Nandi v. Rahatannissa Bibi (58 Cal. 825) [LQ/CalHC/1930/249] , Mukerji and Mitter, JJ., held that an auction sale held in execution of a decree without serving notice under O. 21, R. 22 of the Code of Civil Procedure on one of the judgment-debtors is not void in its entirety, but it only does not bind the share of that judgment debtor.

Mr. Narasaraju, the learned Advocate for the appellant relied on the decision of the Patna High Court in Bachoo Prasad v. Gobardhun Das (A.I.R. 1940 Pat. 62) [LQ/PatHC/1939/130] . On an examination of the facts of that case it is clear that the decision in that case has no bearing on the present case. In the case before the Patna High Court, in execution of a money decree against a number of members of a joint family certain properties of the joint family were brought to sale. In the execution proceedings it was found that no notice was issued to the guardian ad litem of the minors under O. 21, R. 22 of the Code of Civil Procedure. Their Lordships held that the sale of the share of the minors was unsustainable. There was an application by three of the members of the family under S. 47 and also under O. 21, R. 90 to set aside the sale. Having held that the sale of the share of the minor was invalid they proceeded to deal with the contention that the sale should be set aside in its entirety. In doing so they observe as follows:

Mr. Mahabir Prasads last contention was that the sale which purported to be a sale of the entire property, a house, should either stand or be set aside as a whole. There is I think substance in the contention. This is not a case in which the sale has been confirmed, possession taken and enjoyed for years but in respect of part or a share of the property without title. In that state of things there are cases in which the purchaser has retained possession of so much of the property as could in those proceedings have been validly sold to him. It was indeed too late to set aside the entire sale. But here the sale not having been confirmed it is to be considered what was being put up for sale and for what the purchaser was bidding. If there was not a mutual understanding between the Court and the bidders as to what was being put up to sale, it is difficult to say that such a sale can be Confirmed.

No doubt this decision might have a bearing if there was a suit by the first defendant to set aside the sale in respect of the 24 cents belonging to him; but the present suit is not such a suit. The sale has been confirmed in proceedings of which the first defendant had notice and the first defendant never took any proceedings to challenge the validity of the sale. The reasoning of the learned Judges of the Patna High Court cannot obviously apply to a case like the present where the question is not whether the sale should be set aside or not but whether the sale can be held to be completely void.

Mr. Narasaraju mentioned two other points which were raised in the Court below, namely, that the upset price was reduced by the selling officer and the plaintiff had not obtained permission to bid at the sale. There is no substance in either of these contentions. Further I do not think that the first defendant can be permitted to raise these objections in this suit, which is not a suit for setting aside the sale.

In the result the second appeal is dismissed with costs. Leave refused.