Mookerjee, J.

1. This is an appeal by a decree-holder auction purchaser,from an order setting aside an auction sale held in execution of a mortgagedecree for sale. One of the judgment-debtors applied to set aside the saleunder Order XXI, Rule 90, Code of Civil Procedure, and Section 47, Code ofCivil Procedure. So far as the application under Order XXI, Rule 90, Code ofCivil Procedure, is concerned, it has been held that the complaints of theapplicant had no substance. As regards her application under Section 47, Codeof Civil Procedure, it has been held that the notice under Order XXI, Rule 22,Code of Civil Procedure, had not been served on her, and on that ground thesale has been set aside in its entirety. She is one of the heirs of one of themortgagors, and it is said that her share in the properties is less than 5 piesand that of her father the mortgagor was 2 annas 9 pies.

2. The question, which arises, is whether the entire saleshould be set aside or it should be held that the sale so held was invalid tothe extent of applicants share. This question has not, as far as we can see,been considered in any decision of this Court.

3. The Judicial Committee in the case of Raghunath Das v.Sundar Das Khetri I.L.R. (1914) Cal. 72 : L.R. 41 IndAp 251., dealing withSection 248 of the Code of 1882, which corresponded to Order XXII, Rule 1,Sub-rule (l) of the present Code, held, approving the decision of this Court inthe case of Gopal Chunder Chatterjee v. Gunamoni Dasi (1892) Cal. 370., that"a notice under Section 248 of the Code is "necessary in order thatthe court should obtain "jurisdiction to sell property by way of executionas "against the legal representatives of a deceased"judgment-debtor." This interpretation of the law has been applied toOrder XXI, Rule 22, Sub-rule (1), Code of Civil Procedure, since the Code of1908 came into being and it is perhaps too late to contend that, in view of theinsertion of Sub-rule (2), nothing corresponding to which there was in Section248 of the Code of 1882, what was under the Code of 1882 regarded as want ofjurisdiction should now only be regarded as an irregularity, the effect ofwhich would depend upon the circumstances of each particular case. In any eventno court will perhaps have the courage to say so until the Judicial Committeehave another opportunity of considering the matter in the light of thisSub-rule and of pronouncing an opinion in favour of this view. But I find thatwhenever any Judge has expressed such a view it has been firmly negatived [SeeKasi Viswanathan Chetty v. Soma-sundaram Chetty I.L.R. (1921) Mad. 875. andDoraswami v. Chidambaram Pillai I.L.R. (1923) Mad. 63 [LQ/MadHC/1922/181] ., which were overruled byRajagopala Ayyar v. Ramanujachariar I.L.R. (1923) Mad. 288 [LQ/MadHC/1922/292] .]. I have venturedto refer to this view merely because I find it very difficult to reconcile the viewas to absolute want of jurisdiction with what the Sub-rule says. That Sub-ruleleaves it entirely to the court in a case, in which in the exercise of itsdiscretion it considers that the issue of such notice would cause unreasonabledelay or defeat the ends of justice, not to issue that notice. Of course thecourt has to record its reasons for dispensing with the notice, and that isobligatory; but it has been held that though the court should record its reason[Manmatha Nath Ghose v. Lachmi Debi I.L.R. (1927) Cal. 96 [LQ/CalHC/1925/270] .] omission in thatrespect is a mere irregularity. [Rajagopala Ayyar v. Ramanujachariar I.L.R.(1923) Mad. 288 [LQ/MadHC/1922/292] .]

4. Be that as it may, the question in the present case iswhether the entire sale should be set aside. There is no decision of thisCourt, in which the question has been expressly considered and answered in theaffirmative. On the other hand the Madras High Court in a Full Bench decisionin the case of Rajagopala Ayyar v. Ramanujachariar (3) has held that the saleis void only as against the person to whom the notice was not given. TheJudicial Committee in the case of Raghunath Das v. Sundar Das Khetri I.L.R.(1914) Cal. 72 : L.R. 41 IndAp 251. and this Court in the case of Gopal ChunderChatterjee v. Gwnamoni Dasi I.L.R. (1892) Cal. 370. have held that the courtwould have no "jurisdiction to sell the property "by way of executionas against the legal representatives of the deceased judgment-debtor" onwhom the notices were not issued. Moreover, a decree-holder should not find himselfin a worse position by reason of his omission in this respect than what hewould be in, if he omits to make the particular legal representative a party tothe execution. In the latter case, the sale, on the authority of the decisionof the Judicial Committee in the case of Khiarajmal v. Bairn I.L.R. (1904) Cal.296 : L.R. 32 IndAp 23., would not bind the share of that particular legalrepresentative and would be void to the extent of that share. It wouldtherefore be more in consonance with their Lordships decision in the casecited to hold that the sale in the case before us is not void in its entirety,but only that it does not bind the share of the applicant.

5. A question arose whether such an effect can legally begiven to a mortgage sale, but, having regard to the decisions in which it hasbeen held that even when a person having a share in the equity of redemptionhas been left out of a mortgage suit, a decree may be had proportionate to theshares of those who have been impleaded [See Kherodamoyi v. Habib Shaha (1924)29 C.W.N. 51., in which the cases are cited], no difficulty in this respectwill arise.

6. The result is that the appeal is allowed. The court belowwill, in lieu of the order it has made, proceed to confirm the sale except asregards the share of the Petitioner in the properties sold, and to the extentof that share the sale shall stand void. 7. There will be no order for costs.

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Srishchandra Nandivs. Rahatannessa Bibi (26.08.1930- CALHC)