Harries, J.This is a defendants appeal from a decision of Wort J. in second appeal affirming the decision of the lower appellate Court. The plaintiff brought a suit out of which these proceedings arise for a declaration that the sale of certain property in execution was not binding on him and for recovery of possession of the same together with mesne profits. The trial Court dismissed the suit, but on appeal, the learned Subordinate Judge reversed the decree and decreed the plaintiffs claim. In second appeal this decision was affirmed. The plain, tiff claimed that the execution was not binding on him by reason of the fact that it was a sale wholly without jurisdiction.

2. According to the plaintiff, no notice under Order 21, Rule 22, Civil P.C., was served upon him, and that being so, the executing Court had no jurisdiction whatsoever to proceed with the sale. The lower appellate Court has held as a fact that the executing Court issued notice, but it was an improper one. Further, it was found that such notice was never served upon the plaintiff. The latter is a finding of fact which cannot be challenged in this Court. Counsel for the appellants tried to persuade us to reject this finding on the ground that the order sheet of the executing Court showed that notice had been served. What weight is to be attached to the evidence is a matter for the lower Court, and that Court has found that no notice under Order 21, Rule 22 was ever served and that concludes the matter.

3. There is no doubt whatsoever that where no notice under Order 21, Rule 22 has been issued a sale in execution is wholly without jurisdiction. That was decided by their Lordships of the Privy Council in Raghunath Das v. Sundar Das AIR 1914 P.C. 129. Counsel for the appellants has attempted to distinguish this case from the Privy Council case. In the latter, no notice was issued, whereas in the case before us notice was issued but was not served.

4. The appellants rely on the case in Malkarjun v. Narhari (01) 25 Bom. 337. In that case the Court issued notice, and it was served. The recipient of the notice protested that he was not the legal representative of the deceased judgment-debtor, but the Court wrongly held that he was and ordered the sale to proceed.

5. In those circumstances, their Lordships of the Privy Council held that the sale was with jurisdiction as notice had not only been issued but served and the Court had jurisdiction to decide who was the legal representative, though as a matter of fact it decided that question wrongly.

6. In my view mere issuing a notice is not sufficient. The Court must be satisfied that the notice has been served on the person whom the Court regards as the proper recipient of the notice. In the present ease, as no notice was served at all, the case clearly comes within the decision in Raghunath Das v. Sundar Das AIR 1914 P.C. 129 to which I have already made reference, and, therefore the sale was wholly ineffective against the plaintiff.

7. It has been contended that the plaintiff should have moved to set aside the sale under the provisions of Order 21, Rule 90. It was contended that the failure to serve notice under Order 21, Rule 22 was a material irregularity or fraud in the publication or conduct of the sale. In my view, there can be no sale at all unless the notice under Order 21, Rule 22 is served, and this is not a case of irregularity or fraud in the publication or conduct of a sale but rather a case where no sale at all has been held. In the eye of the law the sale in this case was a nullity, and in my judgment the plaintiff was clearly entitled to the relief claimed.

8. In the result, therefore, I would dismiss this appeal with costs.

Fazl Ali J.

I agree.