Judgment Misra, J. 1. This appeal by one of the judgment-debtors arises out of a miscellaneous case in Money Execution Case No. 66 of 1953 which was transferred to the Court of the Subordinate judge, Bhagalpur, from the Court of the 2nd Subordinate Judge, Monghyr. The facts of the case, in a short compass, are as follows: The respendent-decree-holder instituted Money Suit No. 26 of 1948 in the Court of the 2nd Subordinate Judge, Monghyr, against Kumar Daulat Singh shown as major and Kumar Sukha Singh and Kumar Arimardan Singh shown as minors and placed under the guardianship of a pleader. The suit was decreed for Rs. 19,800/-, besides costs. The decree-holder levied execution, being Execution Case No. 74 of 1949, on the 6th December, 1949. Judgment-debtor No. 1 Kumar Daulat Singh filed an objection under Sec. 47, C. P. C. and Sec.11 of the Bihar Money Lenders Act which gave rise to Miscellaneous Case No. 33 of 1950. The judgment-debtors were allowed payment by instalments and a sum of Rs. 11,395/- was actually realised by the decree-holder in terms of the instalments allowed. The judgment-debtors having failed to make any further payment, the execution proceeded for the balance of Rupees 11,000.00 and odd. The judgment-debtors property was sold on the 30th of May, 1952, for Rs. 11,204/14/-. It was purchased at the auction sale by the decree-holder and the set off of the entire decretal dues was allowed. Poundage fee was also filed and 30th of August, 1952, was fixed for confirmation of the sale. On the 28th of June, 1952, however, an application under Order 21, Rule 90, Code of Civil Procedure, was filed by Kumar Daulat Singh which was numbered as Miscellaneous Case No. 17 of 1952. After some adjournments, however, challan for deposit of security money was filed on the 5th September, 1952, which was received in the office on the 23rd October, 1952, showing deposit. On that very dat , a petition was filed by the decree-hol-der to set aside the sale and allow the prayer of the applicant Kumar Daulat Singh. The sale was set aside on the 29th October, 1952, and the execution sale was disposed of on part satisfaction on the 28th November, 1952. It appears that the decree-holder had levied the present execution for realisation of the amount of bai-ance of the decretal dues. 2. The sale was set aside on the 29th October, 1952, and the execution sale was disposed of on part satisfaction on the 28th November, 1952. It appears that the decree-holder had levied the present execution for realisation of the amount of bai-ance of the decretal dues. 2. The appellant objected to the maintainability 01 the fresh execution on the ground that the executing Court had no jurisdiction to set aside the sale held on the 30th of May, 1952, on the application filed by one of tne judgment-debtors, namely, Kumar Daulat Singh, without even giving notice to the appellant. Kumar Daulat Singh made the application for setting aside the sale in collusion with the decree-holder who was anxious to have the sale set aside. 3. The learned Subordinate Judge overruled the contention that Kumar Daulat Singh made the application tor setting aside the sale under Order 21, Rule 90, Code of Civil Procedure, in collusion with the decree-holder. He has also overruled the objection that the Court holding the sale was bound to issue notice under Order 21, Rule 92, Code of Civil Procedure, to the appellant, before setting aside the sale. The appellant has come up to this Court against the decision. 4. It has been contended on behalf of the appellant that it should have been held by the learned Subordinate Judge that Kumar Daulat Singh was in collusion with the decree-holder who, after having purchased the property at the auction sale, was anxious to repudiate the purchase because of notification under Sec.3 of the Bihar Land Reforms Act which came into force and tnc property purchsaed by him was likely to vest in the state of Bihar. He has drawn our attention in this connection to the various dates on which prayer was made for extending the date for filing the security deposit. Learned counsel has also contended that Kumar Daulat Singh was not the Karta of the family of the appellant and he was proceeding to prejudice the interest of the appellant and the other minor Kumar Sukha Singh, both of whom were placed under the guardianship of a pleader to safeguard their Interest. In my opinion, the circumstances brought on the record do not lead to the necessary inference of a collusion between Kumar Daulat Singh and the decree-holder and, as such, the finding of the learned Subordinate Judge on this matter cannot be disturbed. In my opinion, the circumstances brought on the record do not lead to the necessary inference of a collusion between Kumar Daulat Singh and the decree-holder and, as such, the finding of the learned Subordinate Judge on this matter cannot be disturbed. It seems to me, however, that the other contention of Mr. Balbhadra Prasad Singh for the appellant has got substance that the application for setting aside the sale having been filed only by Kumar Daulat Singh, notice or the application should have been issued in terms of Order 21, Rule 92, Code of Civil Procedure, to the appellant as well. His stand was that the family interest was not represented by Kumar Daulat Singh as Karta of the family but that the appellant was sued in his own right and he, being a minor, was put under the guardianship of a pleader, He had thus an independent status of his own and he was one of the persons affected by the sale. The learned Subordinate Judge distinguished the decision in the case of Kapileshwar Jha V/s. Anirudh Jha, 1957 BLJR 128 : ( AIR 1957 Pat 211 ) on the ground that in that case the person who objected to the order setting aside the sale was a seltlee from the auction purchaser and as such, his interest was affected by the sale. Therefore, without impleading him as a party to the application by the judgment-debtor, the sale could not be set aside. In the present case, however, the applicant was one of the judgment-debtors and, as such when the sale was set aside, the interest of the other judgment-debtors was not affected. In my opinion, however, although the learned Subordinate Judge is right in his view that Kumar Daulat Singh had locus standi as one of the judgment-debtors to make an application under Order 21, Rule 90, Code on Civil Procedure, the appellant was entitled to a notice of the application as one of the persons affected by the proceeding. The learned Subordinate Judge has taken for granted that the appellant being a judgment-debtor was nor affected by the order setting aside the sale; but it la obvious that the learned Subordinate Judge is not correct in taking this view. The learned Subordinate Judge has taken for granted that the appellant being a judgment-debtor was nor affected by the order setting aside the sale; but it la obvious that the learned Subordinate Judge is not correct in taking this view. The very alacrity with which the de cree-holder consented to the application of Kumar Daulat Singh for setting aside the sale to be allowed behind his back showed that the decree-holder himself was anxious, to get rid of an unprofitable purchase at the auction, having realised as a result of the notification issued by the State of Bihar that the property sold being zamindari property would not be worth much after the notification vesting it in the State of Bihar was issued. To hold, therefore, that the judgment-debtors inctuding the appellant were not affected by the order is not correct and, in mat view of the matter, in my opinion, the learned Subordinate Judge was not right in passing the order for setting aside the sale; and the learned Subordinate Judge of Bhagalpur also is not right in overruling this contention. 5. Mr. Lalnarayan Sinha for the respondents, now-ever, has contended that the order of the executing Court setting aside the sale should be upheld on another ground which is that in terms of Sec. 4(d) and (e) of the Bihar Land Reforms Act the Court had no jurisdiction to pass an order confirming the sale. Learned counsel tor the parties accordingly have gone into this question elaborately. Mr. Lalnarayan Sinha has relied in support ot his contention on the case of Ramchandra Bhagat V/s. Mrs. Eva Mitra, ILR 38 Pat 1 : ( AIR 1960 Pat 378 ) wherein IT has been held that the order for confirmation of sale Is a judicial act and, therefore, in terms of Sec. 4(d) and (e) no order could be passed for confirmation of the sale. Eva Mitra, ILR 38 Pat 1 : ( AIR 1960 Pat 378 ) wherein IT has been held that the order for confirmation of sale Is a judicial act and, therefore, in terms of Sec. 4(d) and (e) no order could be passed for confirmation of the sale. The following observation in the above judgment has been relied upon in support of his contention: "It is plain, therefore, that after the vesting in the State the Court has no Jurisdiction to confirm the sale Thus, if, after the judicial sale of an estate or tenure and before its confirmation, such estate or tenure has become vested in the State under the Act, the execution proceeding cannot be regarded as having terminated and is a proceeding pending on the date of vesting within the meaning of Clause (d), and, therefore, the Court has no jurisdiction to proceed further with the execution proceeding. The legal consequence of this vesting is that the proceeding must be dropped. Such a case also comes under Clause (e), and because of the statutory prohibition of attachment and sale of an estate or tenure that has vested in the State 35 contained therein, the Court should have no jurisdiction to confirm the sale. Therefore, either under Clause (d) or Clause (e) the entire execution proceeding is income petent and must be quashed." Mr. Balbhadra Prasad Singh has endeavoured to distinguish-that ruling on the ground that that was a case of sale or a property in execution of the mortgage decree and under Order 34, Rule 5, Code of Civil Procedure, the right of the mortgagor to redeem the property up to the point or confirmation of sale has been specifically provided tor. In that view of the matter, it is certainly a judicial act, unlike the present case where confirmation of sale had to be made in the ordinary course in terms of Order 21, Rule 92, Code of Civil Procedure, if the sale could not be set aside under Order 21, rules 89, 90 or 91, of the Code. In that view of the matter, it is certainly a judicial act, unlike the present case where confirmation of sale had to be made in the ordinary course in terms of Order 21, Rule 92, Code of Civil Procedure, if the sale could not be set aside under Order 21, rules 89, 90 or 91, of the Code. Order 34, Rule 5, in so far as it is releyant, runs thus: "5(1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under Sub-rule (3) of this rule, the defendant makes payment into Court of ail amounts due from him under Sub-rule (1) of Rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order- (a) ordering the plaintiff to. deliver up the documents referred to in the preliminary decree, and, also if necessary,-- (b) ordering him to transfer the mortgaged property as directed in the said decree and, also, if necessary,-- (c) ordering him to put the defendant in possession of the property. X X X X X" Learned counsel has contended, therefore, that the observation in that decision does not affect the position as has been laid down in a series of decisions of the various High Courts as also that of the Privy Council that the act of confirmation of sale is a routine matter and not a judicial act requiring the exercise of any judgment on the part of the Court. The decisions referred to are the following, Mandi Mia V/s. Sekander Mea, AIR 1941 Cal 411: Puttayya V/s. Varanashi Subraya, AIR 1953 Mad 988 , Birj Monun V/s. Uma Nath, 19 Ind App 154 (PC), Nanhelal V/s. Umrao Singh, 58 Ind App 50: (AIR 1931 PC 33). The decisions referred to are the following, Mandi Mia V/s. Sekander Mea, AIR 1941 Cal 411: Puttayya V/s. Varanashi Subraya, AIR 1953 Mad 988 , Birj Monun V/s. Uma Nath, 19 Ind App 154 (PC), Nanhelal V/s. Umrao Singh, 58 Ind App 50: (AIR 1931 PC 33). There is substance in the contention in so far, as the observations in the cases referred to above are concerned, I may quote in particular the observation of the Privy Council in 58 Ind App 50: (AIR 1931 PC 33); "The only means by which the judgment-debtor can get rid of a sale, which has been duly carried out, are those embodied in Rule 89 namely, by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent on the purchase money, which goes to the purchaser as statutory compensation, and this remedy can only be pursued within thirty days of the sale; see Article 166, Schedule I, of the Indian Limitation Act, 1903. That this is so is, in their Lordships opinion, clear under the wording of Rule 92, which provides that in such a case (i.e. where the sale has been duly carried out), if no application is made under Rule 89 the Court shall make an order confirming the sale and thereupon the sale shall become absolute." It is true, no doubt, that the observation in the above case of Ramchandra Bhagat, ILR 38 Pat 1: ( AIR 1960 Pat 378 is of a general nature relating to auction sale of a property in execution of a decree irrespective of the tact whether it is a money decree or mortgage decree, but the case is distinguishable in so far as it relates to a mortgage decree for which provision has been made under Order 34, Rule 5, of the Code of Civil Procedure itself. Even on the basis that it is a judicial act, it is correct to hold that it does not affect Clause (e) of Sec. 4 of the Bihar Land Reforms Act. Even on the basis that it is a judicial act, it is correct to hold that it does not affect Clause (e) of Sec. 4 of the Bihar Land Reforms Act. The two relevant clauses may be quoted here:- - "(d) No suit shall lie In any Civil Court for the recovery of any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of or is a charge on, such estate or tenure and all suits and proceedings for the-recovery of any such money which may be pending on the date of vesting shall be dropped, (e) No such estate or tenure shall be liable to attacnment or sale under the processes of any Court and any order of attachment passed in respect of such estate or tenure before the "date of vesting shall cease to be in force." It is clear, therefore, the Clause (d) is not relevant for the purpose of the instant case as it does not relate to any claim of the creditor on foot of a mortgage. There-fore, the only clause relevant is the other one, viz., Clause (e). A clear analysis of this clause shows that what is prohibited is attachment and sale. The latter word must refer to the act of selling which is prohibited. Where, therefore, the sale has been already held, Clause (e) does not provide for any prohibition. In the present case, it was urged that the sale was held before the notification concerned under the Bihar Land Reforms Act. Although confirmation of sale may be a judicial act, it cannot be reasonably urged that it is part of the act of selling of the property at auction sale. The latter part of the section is a provision which affects only the order of attach-ment and does not affect the sale itself. In the exceptional circumstances, therefore, of that case, no occasion arose for considering this aspect of the matter and, therefore, the observation made in that judgment must be confined to the facts of that case. The learned Judge has referred in particular to Sec. 4(d) of the Act which operates as a bar in the case of a mortgage suit or proceeding and the reference to Sec. 4(e) is only incidental as it did not, strictly speaking, arise for consideration. The observation is thus in the nature of an obiter dictum. The learned Judge has referred in particular to Sec. 4(d) of the Act which operates as a bar in the case of a mortgage suit or proceeding and the reference to Sec. 4(e) is only incidental as it did not, strictly speaking, arise for consideration. The observation is thus in the nature of an obiter dictum. The decision referred to in support of the proposition, nameiy, Gopal Bux Rai V/s. shyam-Behari Singh, AIR 1940 Pat 565 was also a case of a sale in execution of a mortgage decree to which Order 34, Rule 5, Code of Civil Procedure applies, apart from Order 21, rules 89, 90 and 91, Code of Civil Procedure. The contention of Mr. Lal Narayan Sinha based on that decision, therefore, cannot be accepted. 6. I may also point out that there are certain other difficulties in the way of the decree-holder in levying a fresh execution. It is not a case of an auction purchaser who is a third party to the proceeding, but the decree-holder himself purchased the properly and had the decretal dues adjusted towards the price of the auctioned property. This could only he done under Order 21, Rule 72, Code of Civil Procedure, under which as soon as the sale is held, satisfaction of the decree is entered up if the purchaser is the above decree-holder. The decree-holder-auction-purchaser, therefore, stands on a different footing fram that of a third party auction purchaser. If the sale were to be set aside, the amount deposited by the third party auction purchaser must be refunded to him. Where, however, decree holder himself has purchased with the permission of the Court, and satisfaction has been entered up-by a formal order, it is doubtful whether the money decree can still be held to be unpaid. This was the decision in the case of Nrisingha Charan Nandi V/s. Kedar Nath, AIR 1937 Cal 713 where, after a sale in execution of a money decree was held, a notice was issued by the Debt Settlement Board under the Bengal Agricultural Debtors Act (7 of 1936) for staying the confirmation of sale, the learned Judges held that the purchaser being the decree-holder, and satisfaction having been entered up, the debt was at least temporarily wiped off and confirmation could not be stayed and debt was non-existent. Sec.34 ot that Act is in pari materia with the provisions of Section 4(d) of the Bihar Land Reforms Act. Our attention has been drawn to other decisions as well which are: Bhyraraju Ramaraju V/s. Lakshmiah, AIR 1931 Mad 103 ; Pun-namchand Chatraban (Firm) V/s. V. Satyanandam, AIR 1933 Mad 804 ; Murugappa Chettiar V/s. Ramasami Chettiar AIR 1935 Mad 893; Charanjit Singh V/s. Sardar Mohammad, AIR 1935 Lah 690; Jaga Bandhu Shaha V/s. Rash Mani Dasee, ILR I937 (2) Cal 625. Mr. Balbhadra Prasad Singh has also urged that only three situations can possibly arise in the present context. The property may vest prior to sale, between the date of sale and that of confirmation or after confirmation. It the sale takes place after vesting then the objection as to non-saleability must be taken at the time of sale; if it is after sale but before confirmation, the objection, it at all, may be taken prior to confirmation, but not so if the auction purchaser is the decree holder whose decretal dues have already been adjusted towards the price at which the property is sold; and if it is after the confirmation then, obviously, the question is immaterial. Even where the confirmation would have taken place on the date fixed but for an act which is held to be without jurisdiction, any measure operating to vacate the sale would not be applicable. The authority for the first proposition is the Full Bench decision of this Court in Baijnath Prasad V/s. Ramphal Sahni, 1962 BUR 110: ( AIR 1962 Pat 72 ). The authority for the second proposition is referred to above and the third proposition does not present any difficulty. But if authority were needed for this, the observation of sir George Lowndes in 58 Ind App 50 at p. 56: (AIR 1931 PC 33 at pp. 35-36) is relevant. Mr. Singh has also referred to other decisions which need not be noticed in detail. 7 Mr. Lalnarayan Sinha has contended that as soon as the sale is set aside, it must be held that the order relating to the satisfaction of the decreal dues also must be deemed to have been automatically vacated, l think it, however, unnecessary to go into this question elaborately because I have already held that the decision on which Mr. Lalnarayan Sinha has contended that as soon as the sale is set aside, it must be held that the order relating to the satisfaction of the decreal dues also must be deemed to have been automatically vacated, l think it, however, unnecessary to go into this question elaborately because I have already held that the decision on which Mr. Lalnarayan Sinha relied is distinguishable, but in view of the fact that the two Tauzis concerned, namely, 7918 and 7985, vested in the State of Bihar under the provisions of the Bihar Land Reforms Act in 1954 and 1956 respectively, as pointed out by learned counsel for the parties with reference to the information slip, all questions excepting the one relating to the non-issue of notice under Order 21, Rule 92 C.P.C. become academic. 8. The appeal, therefore, succeeds, the order of the court below is set aside and it must be held that the order setting aside the sale was passed without any legal ground and the sale held on the 30th of May, 1952, was valid and must stand. That being so, the decree money must be held to be satisfied and a fresh execution is not leviable. 9. Mr. P.K. Bose prays that it may be made clear that the respondent will be at liberty now to apply for the compensation money in respect of these two Tauzis to which they are entitled. Mr. Balbhadra Prasad Singh has no objection. It is accordingly ordered that the respondent will now be entitled to the compensation money under the Land Reforms Act in respect of these two Tauzis and not the appellant or his two brothers. Parties will bear their costs throughout. S.P.Singh, J. 10 I agree.