JUDGMENT S. Velu Pillai, J. 1. The plaintiffs two in number sued to declare, that the decree in O. S. No. 406 of 1116 which the first defendant appellant had obtained against their deceased mother Elisa and the sale of the suit properties in execution of it, are not binding on them and for the recovery of possession of the properties with mesne profits. The suit was converted into a proceeding under Section 47, C. P. C. in the first court itself, but it is more convenient to refer to the parties as in the suit. That court declared the sale to be void and decreed recovery of possession of the properties to the plaintiffs, on deposit by the latter of the sale amount and interest. On appeal by the first defendant, the Subordinate Judge confirmed the decree. 2. I think the first defendant has to succeed on a short ground. The sale in execution was held in Vrischigam, 1118, i.e., in December 1942, and the suit was filed on May 14, 1952. The suit which, as stated, was treated as an application, was held to be within time under Article 181 of the Indian Limitation Act, having been filed within three years from the date of the plaintiff's knowledge of the delivery of the properties pursuant to the sale. Article 181 is the residuary article, which provides for an application, a period of three years from the date on which the right to apply accrues. The two courts have applied this article on the footing, that the court sale was void by reason of the omission to issue the notice under Order XXI, rule 20 of the Travancore Civil Procedure Code corresponding to Order XXI, Rule 22 of the Indian Civil Procedure Code. It was common ground, that if the sale in execution was not void but was only voidable, Article 166 of the Indan Limitation Act, which provides a period of thirty days from the date of the sale for an application to set asid the sale would apply. It was common ground, that if the sale in execution was not void but was only voidable, Article 166 of the Indan Limitation Act, which provides a period of thirty days from the date of the sale for an application to set asid the sale would apply. In holding the sale to be void, both courts have failed to advert to the last proviso to Order XXI, Rule 20 of the Travancore C. P. C., which was introduced in that Code by a notification in the Travancore Government Gazette dated Makaram 10, 1115 and which reads as follows: "Provided that no order for execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment debtor has sustained substantial injury by reason of such omission." The proviso, as it now occurs, in Order XXI, Rule 22 of the Indian C. P. C., as it is in force in this State, reads differently, and is not relevant for the purpose of this case. 3. It was not disputed at the bar, that, in the absence of the proviso, the decisions are almost uniform, that the failure or the omission to issue notice under Order XXI, Rule 22 makes the sale or other execution proceedings void. But these decisions have not considered the effect of the proviso or other similar provision which has been introduced in some of the States. For example, a similar proviso has been inserted in the Rule, by the High Courts of Allahabad and Madhya Pradesh, while the High Courts of Assam, Calcutta, Patna and Orissa have introduced an additional sub-rule which, so far as the present question is concerned, employs similar phraseology. The only question to consider is what is the effect of this proviso. 4. Examining this question, broadly speaking and without going into details, O.21 R.20 of the Travancore C. P. C. may be analysed thus: Sub-rule (1) is the general provision for the issue of a notice to show cause why execution should not be taken, Sub-rule (2) provides, that no notice need issue, in certain cases and the proviso says in effect that to set aside a sale, omission to issue notice is not enough, but that substantial injury inconsequence, must also be proved. Where, however, there is no such proviso as aforesaid, the position is logical, that non-compliance with the Rule is a defect of jurisdiction in the proceedings. But, where, as in the case before me, the proviso forms an integral part of the Rule to be applied, it would be illogical to hold, that the omission to issue notice, would constitute a defect of jurisdiction, for then substantial injury would be irrelevant. It seems to me, that the proviso is incompatible with the notion, that omission to issue notice under Order XXI, Rule 20 is a defect of jurisdiction. It was argued by learned Advocate General, that being a proviso, it cannot bring about such a drastic change in the meaning and content of the Rule itself. It does strike me that the provision is inappropriate as a proviso to sub-rule (2), and possibly for this reason, some of the High Courts have encated it as part of a new sub-rule, and not as a proviso. But even treating it as a proviso, the conclusion seems inevitable, that the sale is not affected by the mere non-issue of the notice; in other words, it is not void, but is only liable to be avoided. 5. Decided cases on this proviso are indeed few; nevertheless in Mobarak Ali v Dinabandhu Sahu (A. I. R. 1953 Orissa 296 at 298) the omission to issue notice was not considered to be a defect of jurisdiction. In Raj Kishore Prasad Jaiswal v Subak Narain Singh (A. I. R. 1959 Patna 89, at page 96) adverting to sub rule (3) in Order XXI, Rule 22 introduced by the High Court of. Patna, which corresponds, more or less to the proviso, it was observed, that by the incorporation of sub rule (3) in the year 1947, the question of notice under Order XXI, Rule 22 is no more a question of jurisdiction. 6. It therefore follows, that the sale was not void, but was only voidable. Viewed as an application under Section 47 C. P. C., it is barred under Article 166 of the Indian Limitation Act. The question of substantial injury is therefore immaterial. On this ground alone, the plaintiffs are not entitled to any remedy. The decrees are set aside, and this appeal allowed with costs in the two courts below. I do not order costs in this court. The question of substantial injury is therefore immaterial. On this ground alone, the plaintiffs are not entitled to any remedy. The decrees are set aside, and this appeal allowed with costs in the two courts below. I do not order costs in this court. The memorandum of objection does not arise and is dismissed, but without costs.