JUDGMENT : BANERJI, J. 1. The respondents obtained a decree for sale against the appellants and caused certain property to be sold on the 20th of September, 1902. The sale was confirmed on the 20th of November, 1902, the decree-holders themselves being the auction purchasers. The judgment-debtors made the application, out of which this appeal has arisen, on the 30th of June, 1963 purporting to bring it under the provisions of section 244 of the Code of Civil Procedure on the allegation that the sale of the property had been brought about by the decree-holders by perpetrating a fraud both upon the Court and upon the judgment-debtors. It is said that the property which was sold was ancestral property and that the execution of the decree should have been transferred to the Collector under the provisions of section 320. The application of the judgment-debtors makes various allegations of fraud in respect of the execution proceedings and the auction sale. The Court of first instance allowed the application and set aside the sale. On appeal the learned District Judge refused to go into the merits of the case, being of opinion that the application could not be properly made under the provisions of section 244, and that no appeal lay to him. 2. This view is opposed to several rulings of the Calcutta High Court which have been cited to us. We may refer to Moti Lal Chakrabutty v. Russick Chandra, Bairagi, [1896] I.L.R., 26 Cal, 326, Durga Char an Mandal v. Kali Prasanno Sarkar, [1899] I.L.R., 25 Cal., 727. In the case last mentioned it was held that an application to have sale set aside on the ground of fraud could be made under section 244, even after the sale-was confirmed. This view seems to be in consonance with the principle of the ruling of the Privy Council in Prasunno Kumar Sanyal v. Kali Das Sanyal, [1892] I.L.R., 19 Cal., 683. The lower appellate court was therefore wrong in refusing to entertain the appearand to try the questions raised in the case by the parties. We need hardly point out that if the representation made by the decree-holder that the property was non-ancestral was not in fact correct, that fact alone would not make his conduct fraudulent unless the representation was made with fraudulent intent. We need hardly point out that if the representation made by the decree-holder that the property was non-ancestral was not in fact correct, that fact alone would not make his conduct fraudulent unless the representation was made with fraudulent intent. As, however, the the case was decided upon a preliminary point and the decision upon that point is in our opinion erroneous, we allow the appeal and remand the case under section 562, Civil Procedure Code, for trial upon the merits. Costs here and hitherto will follow the event.