JUDGMENT Mukerji, J. - This is an appeal by a decree-holder auction purchaser, from an order setting aside an auction sale held in execution of a mortgage decree for sale. One of the judgment-debtors applied to set aside the sale under Order XXI, Rule 90, Code of Civil Procedure, and Section 47, Code of Civil Procedure. So far as the application under Order XXI, ule 90, Code of Civil Procedure, is concerned, it has been held that the complaints of the applicant had no substance. As regards her application u/s 47, Code of 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 the sale has been set aside in its entirety. She is one of the heirs of one of the mortgagors, and it is said that her share in the properties is less than 5 pies and that of her father the mortgagor was 2 annas 9 pies. 2. The question, which arises, is whether the entire sale should be set aside or it should be held that the sale so held was invalid to the extent of applicant's 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 ILR (1914) Cal. 72 : L.R. 41 IndAp 251., dealing with Section 248 of the Code of 1882, which corresponded to Order XXII, ule 1, Sub-rule (l) of the present Code, held, approving the decision of this Court in the case of Gopal Chunder Chatterjee v. Gunamoni Dasi (1892) Cal. 72 : L.R. 41 IndAp 251., dealing with Section 248 of the Code of 1882, which corresponded to Order XXII, ule 1, Sub-rule (l) of the present Code, held, approving the decision of this Court in the case of Gopal Chunder Chatterjee v. Gunamoni Dasi (1892) Cal. 370., that "a notice u/s 248 of the Code is "necessary in order that the court should obtain "jurisdiction to sell property by way of execution as "against the legal representatives of a deceased "judgment-debtor." This interpretation of the law has been applied to Order XXI, Rule 22, Sub-rule (1), Code of Civil Procedure, since the Code of 1908 came into being and it is perhaps too late to contend that, in view of the insertion of Sub-rule (2), nothing corresponding to which there was in Section 248 of the Code of 1882, what was under the Code of 1882 regarded as want of jurisdiction should now only be regarded as an irregularity, the effect of which would depend upon the circumstances of each particular case. In any event no court will perhaps have the courage to say so until the Judicial Committee have another opportunity of considering the matter in the light of this Sub-rule and of pronouncing an opinion in favour of this view. But I find that whenever any Judge has expressed such a view it has been firmly negatived [See Kasi Viswanathan Chetty v. Soma-sundaram Chetty ILR (1921) Mad. 875. and Doraswami v. Chidambaram Pillai ILR (1923) Mad. 63., which were overruled by Rajagopala Ayyar v. Ramanujachariar ILR (1923) Mad. 288.]. I have ventured to refer to this view merely because I find it very difficult to reconcile the view as to absolute want of jurisdiction with what the Sub-rule says. That Sub-rule leaves it entirely to the court in a case, in which in the exercise of its discretion it considers that the issue of such notice would cause unreasonable delay or defeat the ends of justice, not to issue that notice. Of course the court has to record its reasons for dispensing with the notice, and that is obligatory; but it has been held that though the court should record its reason [Manmatha Nath Ghose v. Lachmi Debi ILR (1927) Cal. 96.] omission in that respect is a mere irregularity. [Rajagopala Ayyar v. Ramanujachariar ILR (1923) Mad. 288.] 4. Of course the court has to record its reasons for dispensing with the notice, and that is obligatory; but it has been held that though the court should record its reason [Manmatha Nath Ghose v. Lachmi Debi ILR (1927) Cal. 96.] omission in that respect is a mere irregularity. [Rajagopala Ayyar v. Ramanujachariar ILR (1923) Mad. 288.] 4. Be that as it may, the question in the present case is whether the entire sale should be set aside. There is no decision of this Court, in which the question has been expressly considered and answered in the affirmative. On the other hand the Madras High Court in a Full Bench decision in the case of Rajagopala Ayyar v. Ramanujachariar (3) has held that the sale is void only as against the person to whom the notice was not given. The Judicial Committee in the case of Raghunath Das v. Sundar Das Khetri ILR (1914) Cal. 72 : L.R. 41 IndAp 251. and this Court in the case of Gopal Chunder Chatterjee v. Gwnamoni Dasi ILR (1892) Cal. 370. have held that the court would have no "jurisdiction to sell the property "by way of execution as against the legal representa"tives of the deceased judgment-debtor" on whom the notices were not issued. Moreover, a decree-holder should not find himself in a worse position by reason of his omission in this respect than what he would be in, if he omits to make the particular legal representative a party to the execution. In the latter case, the sale, on the authority of the decision of the Judicial Committee in the case of Khiarajmal v. Bairn ILR (1904) Cal. 296 : L.R. 32 IndAp 23., would not bind the share of that particular legal representative and would be void to the extent of that share. It would therefore be more in consonance with their Lordships' decision in the case cited 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. It would therefore be more in consonance with their Lordships' decision in the case cited 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 be given to a mortgage sale, but, having regard to the decisions in which it has been held that even when a person having a share in the equity of redemption has been left out of a mortgage suit, a decree may be had proportionate to the shares 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 respect will arise. 6. The result is that the appeal is allowed. The court below will, in lieu of the order it has made, proceed to confirm the sale except as regards the share of the Petitioner in the properties sold, and to the extent of that share the sale shall stand void. 7. There will be no order for costs.