DUTTA, J.: This appeal arises out of an execution matter. Respondent No. 1 Messrs. Calcutta Credit Corporation obtained a decree in the Calcutta High Court against the appellant P. C. Bezfoarua for the recovery of a car and a sum of Rs. 10,315/10/- with cost and interest This decree was sent for execution to the District Judge at Gauhati who sent it to the District Judge at Jorhat for necessary ac­tion. The District Judge at Jorhat in his turn sent the decree to the Subordinate Judge at Jorhat for execution but before any action could be taken the District Judge at Gauhati recalled the decree and sent it to the Subordinate Judge at Gauhati for execution. (2) On 29-11-56 the decree-holder got possession of the car and some shares of the judgment-debtor in the Govindapur Tea Company Limited were attached for realisation of the cash amount. On 11-12-58 a sale notice was issued. It appears from the record that this sales notice could not be served on the judgment-debtor and 8 Sale Proclamation was issued 18.8.59. On 8.1.60 two share-holders of the Govindapur Tea Company, other than the judgment-debtor, filed petitions alleging that in the Sale Proclamation their shares were wrongly advertised for sale. The decree-holder admitted these mistakes and hence a fresh sale proclamation was issued. But no sale notice under Order 21 Rule 66 (2) was issued in respect of this sale proclamation. Thereafter the Munsiff at Gfauhati was entrusted with the conducting of the sale. The auction commenced on 29-2-60 and was closed on 9.3.60. The decree-holder and Respondent No. 2 the Bahadur Tea Company Limited were the only bidders. The Bahadur Tea Company Limited gave the highest bid and purchased the shares at Rs. 11,600/-. On 84-60 the* judgment-debtor filed a petition under S. 47 of the Civil Procedure Code for setting aside the sale alleging Inter alia that the sale proclamation was defective and that no sale notice was served en the judgment-debtor and as a result the shares were sold at a very low price. This petition did not bear arty court-fee. On 24-5-60 another petition was filed repeating the above allegations and stating that due to certain illegalities the entire execution proceedings were null and void. These petitions were considered by the learned Subordinate Judge who dismiss­ed the same by his order dated' 22.5.61. The present ap­peal is against that order. This petition did not bear arty court-fee. On 24-5-60 another petition was filed repeating the above allegations and stating that due to certain illegalities the entire execution proceedings were null and void. These petitions were considered by the learned Subordinate Judge who dismiss­ed the same by his order dated' 22.5.61. The present ap­peal is against that order. (3) It may be noted that the original sale proclama­tion is missing from the record. On a petition filed by the judgment-debtor the Managing Director of the Govinda­pur Tea Company Ltd. was asked to produce the sale pro­clamation served on him. Accordingly this was produced and it transpired that there was no mention in it of the time and place of sale. From the order of the Subordinate Judge dated 8-1-60 it is apparent that the sale notice was also not issued. (4) Mr. Ray, the learned counsel for the appellant, contends that an omission to give notice of sale under Order 21 Rule 66, Civil Procedure Code is more than a mere irregularity and renders the sale void. He also con­tends that the omission of the time and place of sale In the sale proclamation means that the sale which took place under such a proclamation was no sale at all under the Civil Procedure Code. He submits that it is a very hard case in which very valuable property was sold at a frivolous price. (5) Mr. Ghosh appearing on behalf of Respondent No. 2 (the auction-purchaser) submits that this appeal is not maintainable at all inasmuch as, according to Mr. Ghosh, the order of the Subordinate Judge cannot be treated as an order under S. 47 Civil Procedure Code. I may first deal with this objection. (6) For determining whether or not an order falls under S. 47 Civil Procedure Code we must first see whe­ther the order decides a question arising between the parties to the suit in which the decree was passed and whether there was a judicial decision binding on the par­ties in a subsequent proceeding. The determination of a question relating to an application under 0. 21 R. 66 rosy thus in some cases be an order passed under S. 47. The determination of a question relating to an application under 0. 21 R. 66 rosy thus in some cases be an order passed under S. 47. In the present case, on a petition filed by the judgment-debtor, the learned Subordinate Judge adjudicates on the question whether the omission of the time and place of sale in the sale proclamation renders the sale null and void. His order in this matter is not an administrative order but a judicial order affecting the rights of the par­ties and is thus within S. 47 and appealable. (7) In Narayan Purshottam v. Ramchandra Mudgalji, AIR 1948 Nag 177, it was held that where an application was brought for setting aside a sale not on the grounds covered by Rules 89, 90 and 91 of Order 21 but on the ground of want of notice under 0. 21 R. 66, the applica­tion lay under S. 47. This decision gets support from decision of the Supreme Court in Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87 . In that case the decree directed only the sale of mortgage, rights but the pro­perty itself was sold. The Supreme Court held that such a question while arising between the parties could be agitated by an application under S. 47 and not in a sepa­rate suit. (8) In B. V. Patankar v. C. G. Sastry, . AIR 1961 SC 272 it was held1 that where the executing court ignored the provisions of the Rent Control Order prohibiting evic­tion of tenants, and passed an order of delivery of pos­session in execution of a decree, the order can be set aside and an order of redelivery to the tenant could be passed on an application, under S. 47 read with S. 151, Civil Procedure Code. (9) In Balwant Rai Kumar v. Amrit Kaur, AIR 1961 Punj 495, the Punjab High Court held that when sale was set aside on the ground of fraud or on the ground that no order under 0. 21 R. 66(2) was issued, an application under S. 47 was maintainable. (10) In Bhan Kumar v. Lachimi Kanta, AIR 1941 Patna 566 it was held that where a sale was wholly without Jurisdiction and consequently void, an application by the judgment-debtor to have the sale declared void' would lie under S. 47. 21 R. 66(2) was issued, an application under S. 47 was maintainable. (10) In Bhan Kumar v. Lachimi Kanta, AIR 1941 Patna 566 it was held that where a sale was wholly without Jurisdiction and consequently void, an application by the judgment-debtor to have the sale declared void' would lie under S. 47. (11) The principle to be deduced from the above authorities is that when the sale of any property is sought to be set aside on the ground of the sale being null and void, the application, lies under S. 47. (12) In the case before us the learned Subordinate Judge, holds that "even if time and place was not men­tioned in the S. P., it is an irregularity and does not vitiate the sale and R. 78 of 0. 21 applies and the remedy is by suit and not by such a petition under S. 47 C. R C." At this stage I may set out the provisions of this Civil Procedure Code necessary for our purpose. Order 21 R. 66, so far as is relevant, is as follows: "66(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made In the language of the Court. (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and' place of sale, and specify as fairly and accurately as possible - (a) the property to be sold; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any encumbrance to which the property is liable} (d) the amount for the recovery of which the sale is ordered,- and (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property." (12a) Order 21 Rule 78 reads as follows: "78. Irregularity not to vitiate sale, but any person injured may sue- No irregularity in publishing or conducting the sale of moveable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the, hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for-compen­sation in default of such recovery.'1 (13) It may be noted that Rules 64 to 73 of 0. 21 apply to "Sale generally". Rules 74 to 81 of the said Order apply to "Sale of moveable property". Rules 82 to 103 apply to "Sale of immoveable property". (14) Order 21 Rule 78 quoted above, bars an appli­cation for setting aside a sale of moveable property for any irregularity. But it" cannot bar such an application if the sale is illegal and consequently a nullify. It is no doubt not easy to draw the line between irregularity and illegality in an execution sale but where a mandatory pro­vision, of law is violated the sale should be regarded as having been illegally conducted and would be void. (15) Rule 66(2) of Order 21 is no doubt in impera­tive terms when it says "Such proclamation shall be drawn up after notice to decree-holder and the judgment-debtor and shall state the time_ and place of sale." The question is whether this provision has merely a directory import or it is mandatory. If a provision gives a power coupled with a duty, it is mandatory and whether it does so or not will depend on such considerations as the nature of the thing empowered to be done, the object for which it is done and the persons for whose benefit the power is to be exercised. The provision as to notice to the judgment-debtor is intended to give him an op­portunity to raise any objection he may have to the pro­posed sale. So there is a duty on the part of the Court to issue the notice so that the judgment-debtor may not be deprived of this opportunity. The provision as to notice to the judgment-debtor is intended to give him an op­portunity to raise any objection he may have to the pro­posed sale. So there is a duty on the part of the Court to issue the notice so that the judgment-debtor may not be deprived of this opportunity. As pointed out by Mundhol-kar, J. in Dada v. Jaichand, AIR 1958 Bom 278 , it is one thing to say that the Court can do such and such a thing after issuing a notice and it is another thing to say that the Court will issue) a notice and nothing more. "Where a thing can be done only after issue of a notice it necessarily follows that it can only be done after such a notice has been served. The jurisdiction of a court to sell a property under R. 66 (2) of 0. 21 can only be derived after service of notice and cannot be obtained merely by ordering the issue of a notice". ( may add that in the present case there was no order even for the issue of the notice. Again the object' of the sale proclamation is to give notice to intending pur­chasers and omission to mention the place and hour of sale naturally affects the interest of the judgment-debtor, it is to whose interest the property should be sold at a competitive price. In this view of the matter, .1 am of the opinion that the provision in 0. 21 R. 66 (2) which enjoins the Court to issue the notice of sale and to mention in the sale proclamation the time and place of the sale is a mandatory provision of law, the breach of which makes the sale null and void. (16) The above view gets support from the decisions in a number of cases which although deal with sale of immoveable property, lay down the effect of non-issue of notice or omission to mention place and hour of sale as required under 0. 21 R. 66 (2J. (17) In Chedami Lai v. Amir Beg, ILR 7 All 676, the property was advertised to be sold at 11 A.M. and was sold at 7 A. M. It was held that the mistake was more than a mere irregularity in conducting the sale and that the whole proceedings were invalid. 21 R. 66 (2J. (17) In Chedami Lai v. Amir Beg, ILR 7 All 676, the property was advertised to be sold at 11 A.M. and was sold at 7 A. M. It was held that the mistake was more than a mere irregularity in conducting the sale and that the whole proceedings were invalid. The Court observed .that not merely there was an irregularity in the sale, but there was, practically speaking, no sale at all. (18) In Jasoda v. Mathura Das, ILR 9 All 511 the sale proclamation omitted to state the place of sale an the sale took place on a date other than that notified in the proclamation and before the expiration of the thirty days required by the then provision of Sec. 290 Civil Procedure Code. It was held that' the non-compliance" with the provisions of the law was more than a mere irregula­rity and that it must have caused substantial injury. (19) In Basharutulla v. Uma Churn Dutt, ILR 16 Ca! 794, a property advertised for sale was sold on the day fixed, but at an earlier hour than that stated in the proclamation. It was held1 that there was no sale within the meaning of the Code. In this connection Petheram C. J. observed that the proclamation of the time and place of sale were conditions precedent to its being a sale under the Code at all. (20) In Jayarama Ayyar v. Vritihagiri Aiyar ILR 44 Mad 35 : (AIR 1921 Mad 583), a proclamation of sale of lands in execution of a decree, as framed by the Court, was not published in. the village where the lands were situate but the process-server intimated at the village that the sale would be held at a place and by an officer different from those fixed by the proclamation, it was field that a sale at the place and by the official fixed by the proclamation is illegal and a nullity and not merely "irregular" within the meaning of 0. 21 R. 90. In this connection Oldfield, J. observed:- "It is unnecessary to go through those cases, be­cause the decision" in each rested on the facts in it, and because it does not appear that any general rule for dis­tinguishing between an irregularity and an illegality has ever been laid down. 21 R. 90. In this connection Oldfield, J. observed:- "It is unnecessary to go through those cases, be­cause the decision" in each rested on the facts in it, and because it does not appear that any general rule for dis­tinguishing between an irregularity and an illegality has ever been laid down. It would appear, in fact, that the distinction is one of degree, and that an irregularity of 10 serious a nature as to render impossible the publicity which affords one main security for the fairness of public sales must be deemed to be an illegality." (21) In Pannalal v. Firm Hasan Dada, AIR 1939 Wag 258 the sale was proclaimed for 12 noon two was held at 9 A. M. While setting aside the sale Gruer, I. quoted the above observation with approval. (22) In AIR 1948 Nag 177, it was held that a notice under 0. 21 R. 66 (2} was mandatory anti omission to give it would not be treated as curable irregularity. Simi­lar view was taken by the Saurashtra High Court in Chanchal Malukchand v. Gandhi Trambaklal, AIR 1954 Sau 11 and the Bombay High Court in AIR 1958 Bom 278 (mentioned above). (23) In Jagannath v. Perumal Naidu, (S) AIR 1955 Mad 233 it was observed that where a judgment-debtor was not served with a notice under 0. 21 R. 66 the entire sale: proclamation and the subsequent sale held in his absence should be deemed to be absolutely null and voids 'ab initio'. (24) I may next refer to the cases cited at the Bar in support of the contention that the want of the sale notice or the omission to mention the time and place ire the sale proclamation is a mere irregularity. (25) In Satyanarayana Murthy v. Bhavanarayarra, (S) AIR 1957 Andh-Pra 185 (FB), it was held by a Full Bencfo of the Andhra Pradesh High Court that the violation of the provisions of Order 21 Rule 66 (2) was only an irregularity in the publication or conduct of sale. It was, however observed in this case that if the proclamation was not properly drawn up, it could not be said that there was proper publication because it would be publication of an improper proclamation of sale. It is difficult to see how a sale held on improper publication of sale could De anything but void ab initio. It was, however observed in this case that if the proclamation was not properly drawn up, it could not be said that there was proper publication because it would be publication of an improper proclamation of sale. It is difficult to see how a sale held on improper publication of sale could De anything but void ab initio. (26) In Karunakaran v. M. Chathu, AIR 1956 Mad 231 , it was held by a single Bench of the Madras High Court that absence of a notice under Order 21 Rule 66 would not by itself, make the sale a nullity but would at best be only an irregularity. It was however added that it was possible that in some rare cases a failure to issue a notice under 0. 21 R. 66 might make the sale void as when the sale was held without the judgment-debtor being ever aware of it. In the case before us there is nothing to show that the judgment-debtor was aware of the sale. (27) In Dwaraka Das v. Bhawani Prasad, AIR 1950 All 510, a single Bench of the Allahabad High Court held that an omission to specify the place of sale in the sale proclamation was only an irregularity not vitiating the sale when there was no proof of loss or prejudice to the objec­tor. The learned Judge quoted the principle laid down by Petheram C. J. in ILR 7 All 676, to the effect that when a statute authorised a sale which was to be conflicted "81 a time and place properly notified, a sale otherwise con­ducted was not a sale at all within the meaning of the statute. But the learned Judge refrained from commenting on this principle simply by saying that the facts of that case were vitally different. I may say, with due res­pect, that' difference in facts can make no difference to the above general principle laid down. (28) From the above discussion it appears that the weight of judicial decisions is in support of the view that the provision in 0. 21 R. 66(2) regarding notice and men­tion of time and place is mandatory and its breach will render a sale null and void. I accept it as the correct view. (29) Mr. Ray has made another submission which is as follows. 21 R. 66(2) regarding notice and men­tion of time and place is mandatory and its breach will render a sale null and void. I accept it as the correct view. (29) Mr. Ray has made another submission which is as follows. By letters dated 1-8-57 and 17-9-57 ths Managing Director of the Govindapur Tea Company drew the attention of the Subordinate Judge to the fact that the shares of the judgment-debtor in the said company had already been attached by orders of the Registrar of Co­operative Societies, Assam in" two cases. Under Sac. 81 ct the Assam Co-operative Societies Act, 1949, the Registrar may direct the attachment of property for recovery of clues under the said Act and the attachment has -the same force and effect as if it had been made by a competent Civil Court. It is contended that in the present case the amounts for which the Registrar attached the shares being within the pecuniary jurisdiction of a Subordinate Judge, the Regis­trar issuing the orders of attachment must be treated as a court of the status of a Court of the Subordinate Judg3. Under Sec. 63 of the Civil Procedure Code where two court's of the same status attach a property, it is the Court which first attaches it that can receive or realise such. property. It is true that sub-sec. (2) of, Sec. 63 saves the sale by a Court other than the court attaching it first from feeing invalid. But when a Court knowingly violates sub-sec. (1) of Sec. 63, as in the present case, sub-sec. (2) is no protection. (30) I do not think there is any force in the above argument. The term "court" used in Sec. 63 Civil Pro­cedure Code means a court to which the Code applies and the Registrar of Co-operative Societies is not a court of this kind although his attachment order has the same force and effect as the attachment order of a competent Civil Court. But in consequence of the view I have taken of the effect of the non-issue of the notice and omis­sion to mention time and place as required under 0. 21 Rule 66(2), this appeal must succeed. The order of sale is set aside and the parties will revert to the right which they had before the sale proclamation was drawn up. 21 Rule 66(2), this appeal must succeed. The order of sale is set aside and the parties will revert to the right which they had before the sale proclamation was drawn up. (31) In the circumstances of the case, parties will bear their own cost throughout. (32) MEHRCTRA, C. J.: I have read the judgment of my brother Dutta J. and I agree with him that this appeal must succeed. But as the point raised is of some impor­tance I would like to give my own reasons. (33) The facts are fully set out in his judgment. Respondent No. 1 Messrs. Calcutta Credit Corporation ob­tained a decree in the Calcutta High Court against the. appellant Shri Prafulla Chandra Bezbaruah for the recovery of a car and a sum of Rs. 10,315/107-. In execution of the said decree, certain shares of the judgment-debtor in the Govindapur Tea Company Limited were attached and in an auction sale held on the 29th February 1960 the respondent No. 2 the Bahadur Tea Company Limited pur­chased the said shares at Rs. 11,600/-. The auction sale was completed on the 9th March 1960 and on the 8th April 1960 the judgment-debtor appellant filed a petition purporting to be one under Sec. 47, Civil Procedure Cods, for setting aside the sale. This petition was supplement­ed by another petition on the 24th May, 1960. The trial court refused to set aside the sale and the present ap­peal has been filed against the said decision. (34) Before dealing with the main contention of the appellant some objections raised by the respondents may be disposed of. The contention of the respondents is that the application made under Sec. 47, Civil Procedure Code was not property stamped. There was no proper ap­plication by the judgment-debtor for setting aside the sale. The trial Court and the parties proceeded on the assump­tion that there was a valid application for setting aside the sale and thus at this stage the question need not be examined. (35) It is then urged that there was no evidence to show that the sale proclamation issued under 0. 21, R. 66, Civil Procedure Code did not contain the time and place of the sale and that the proclamation was defective. (35) It is then urged that there was no evidence to show that the sale proclamation issued under 0. 21, R. 66, Civil Procedure Code did not contain the time and place of the sale and that the proclamation was defective. The Court below has also briefly referred to this contention, but has primarily based' its decision on the finding that the failure to mention the time and place of the auction sale in the sale proclamation is a mere irregularity and thus sale cannot be set aside in view of the provisions of 0. 21 R. 78, Civil Procedure Code. The original sale proclamation was missing from the Court file and thus at the instance of the judgment-debtor the Managing Director of the Govindapur Tea Company Limited was asked to produce the sale proclamation served on him, which he did. The copy of the sale proclamation served on the Govindapur Tea Company Limited shows that the sales pro­clamation did not contain the place and the time of the auction sale. As the original sale proclamation was mis­sing from the record, secondary evidence was permissible and when the copy of the sale proclamation served on the Govindapur Tea Company Limited was produced, the judgment-debtor has done all that he could do under the circumstances to prove the contents of the sale proclama­tion. It was argued that the judgment-debtor could him­self have produced the copy served on him. This argu­ment assumes that the copy of the sale proclamation was served on the judgment-debtor. The case of the judgment-debtor is that no notice was issued to the. judgment-debtor before the sale proclamation was drawn up, nor was any copy of the sale proclamation served on him. The question thus of his producing the copy does not arise. (36) It was then urged that there was no evidence to prove the fact that no notice was served on the judg­ment-debtor before, drawing up the sale proclamation under 0. 21 R. 66(2), Civil Procedure Code. It was for the judgment-debtor to prove by positive evidence the absence of the notice under 0. 21 R. 66(2), which he has failed to do. It is open to the court to examine the record and find out whether any notice under 0. 21 Rule 66 (2) was or was not served on the judgment-debtor. It was for the judgment-debtor to prove by positive evidence the absence of the notice under 0. 21 R. 66(2), which he has failed to do. It is open to the court to examine the record and find out whether any notice under 0. 21 Rule 66 (2) was or was not served on the judgment-debtor. The Court below assumed that such a notice was not served but has repelled the contention of the judgment-debtor on. the ground that 'it was a mere irregularity which will not vitiate to sale under 0. 21 R. 78, Civil Procedure Code. On the facts thus there is not much controversy and it has been fully established that the sale proclamation issued did not contain the time and place of the auction sale and further that no notice under 0. 21 R. 66(2) was issued in the present case. (37) Two main questions arise in the case. The first point to be considered is whether any application for setting aside the sale is maintainable under Sec. 47, Civil Procedure Code. Section 47, Civil Procedure Code provi­des that all questions arising between the parties to the suit in which the decree was passed, or their representa­tives and relating to the execution, discharge or satis­faction of the decree, shall be determined by the Court executing the decree and not by a separate suit. By an amending Act of 1956 an explanation has been added to Sec. 47 which lays down that for the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit. In order to attract Sec. 47 it is necessary that the question must arise between the parties to the suit relating to the execution, discharge or satisfaction of the decree. When the judgment-debtor contends that the sale is not valid and the decree does not stand satisfied while the auction-purchaser asserts that the sale has been properly effected, the question does arise relating to the execution, discharge or satisfaction of the decree. When the judgment-debtor contends that the sale is not valid and the decree does not stand satisfied while the auction-purchaser asserts that the sale has been properly effected, the question does arise relating to the execution, discharge or satisfaction of the decree. After the decree has been satisfied, the execution court be­comes functus officio and the question thus raised by the Judgment-debtor that the auction sale should be treated as a nullity and it should be deemed in the eye of law to be no sale is a matter relating to the execution, dis­charge or satisfaction of the decree. Reference in this con­nection is made to the case of (S) AIR 1956 SC 87 and the case of AIR 1961 SC 272 . In 1956 case it was observed : "When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under Sec. 47 and not in a separate suit." In the 1961 case it was held that when the executing Court ignores the provisions of the Rent Control Order prohibiting eviction of the tenant and passes an order of delivery of possession, in execution of a decree, an order can be made setting aside the said order and further an order of redelivery to the tenant can be made under Sec. 47, Civil Procedure Code. (38) In the case of 'Prosunno Kumar Sanyal v. Kali Das Sanyal, ILR 19 Cal 683, their Lordships of the Privy Council dealing with a case under Sec. 244 of the Civil Procedure Code, 1882 which corresponds to Sec. 47 of the present Act, held that the matter relating to execution, discharge or satisfaction of the decree can be decided only by the executing court even though the auction pur­chaser may be an interested party. The facts of that case are that the sale held was sought to be challenged on the ground that the decree-holder had received from some of the co-sharers in the zemindari their proportionate amounts of the debt decreed and had agreed that their shares should be exempt from the execution sale about to take place. The sale took place subject to that exemp­tion. The sale took place subject to that exemp­tion. That sale was however subsequently set aside and the attachment of the entire share was revived and a second sale was held in which the entire share was sold. It was urged by the judgment-debtor that as the second sale was a nullity in view of the first sale exempting the share of one of the co-sharers, the matter could be agitat­ed only by means of an application under Sec. 244, Code of Civil Procedure of 1882 and not by a suit. It was admitted by the counsel before their Lordships of the Privy Council that the question at issue was one relating to execution, discharge or satisfaction of the decree. The only point raised was that as the auction purchaser was no party to the decree and his interest was affected if the sale was set aside, such a remedy could only be obtained through a suit and not by an ap­plication under Sec. 244. This contention was repelled. That controversy, however, has been set at rest by addi­tion of the explanation to Sec. 47. This view was again reiterated by their Lordships of the Privy Council in- the case of Ganapathy Mudaliar v. Krishnamachariar, AIR 1917 PC 121. In that case in the sale proclamation a wrong decree was mentioned. The sale was held and confirmed and no objection was raised in execution to its validity. The sale was sought to be challenged by means of a suit and it was held that Sec. 47, Civil Procedure Code applied to the case. In the case of Tamizali v. Md. Nasarali Bhuiya, AIR 1941 Cal 58 .it was held by the Calcutta High Court that the question as to the validity of the execution sale is clearly a matter which arises between the parties to the suit and relates to the execution of the decree and there­fore falls within the purview of Sec. 47, Civil Procedure Code. In. the case of N. Narayana lyengar v. Veerabhadra Pillai, ILR 34 Mad 417 a suit was brought by a party to the decree against an auction purchaser by which the sale was challenged. The suit was held to be barred. In. the case of N. Narayana lyengar v. Veerabhadra Pillai, ILR 34 Mad 417 a suit was brought by a party to the decree against an auction purchaser by which the sale was challenged. The suit was held to be barred. It was held that the ground for such non-maintainability of the suit is not that Sec. 244 bars the suit as the auction pur­chaser is the representative of the decree-holder, but that Sec. 244 being a bar to setting aside the sale except by a proceeding between the parties, the suit against the purchaser is not maintainable until it is so set aside. The Privy Council Case which' I have already referred to, was relied upon. To the same effect is the decision of the Bombay High Court in the case of Gokulsing Bhikaram Pardeshi v. Kishansingh Guru Laxmangiri, ILR 34 Bom 546. (39) All these authorities show that an auction sale can only be set aside by means of an application under Sec. 47, Civil Procedure Code. Section 47, Civil Pro­cedure Code not only-bars a suit but lays down the pro­cedure for deciding the matter relating to the execution, satisfaction and discharge of the decree. In the case of sale of immovable property, if the sale is sought to be set aside on the ground of any fraud or material irregula­rity, an application has to be made under 0. 21 R. 90, Civil Procedure Code. An application under 0. 21 R. 90 will only lie before the sale is confirmed. After the con­firmation if the sale is sought to be set aside, an appli­cation will only lie under Sec. 47, Civil Procedure Code. If the sale is sought to be set aside on the ground of martial irregularity under 0. 21 R. 90, the applicant has further to show that he has sustained substantial injury by reason of such irregularity or fraud. If the sale is to be set aside by an application under Sec. 47, this limitation is not there. In fact the scope of the appli­cation under 0. 21 R. 90 is covered by Sec. 47 also. Reading Sec. 47 and 0. 21 R. 90 together it will appear that if the sale is sought to be set aside on ac­count of any irregularity or fraud in publishing or conduct­ing the sale, an application is to be made under 0. 21 R. 90 is covered by Sec. 47 also. Reading Sec. 47 and 0. 21 R. 90 together it will appear that if the sale is sought to be set aside on ac­count of any irregularity or fraud in publishing or conduct­ing the sale, an application is to be made under 0. 21 R. 90, which only means that such an application can be filed before the confirmation of the sale and relief can be granted only if substantial injury has been established. In cases where the irregularity or fraud is not in respect of publishing and conducting the sale, or in cases where the irregularity is such which renders the sale non est in the eye of law, such a ground cannot be said to be a material irregularity or fraud in publishing or conducting the sale and the sale can only be set aside by an ap­plication under Sec. 47 and not by an application under 0. 21 R. 90. Order 21 R. 90, however, deals only with 'the sale of immovable properties. Order 21 R. 78 deals, with the cases of moveable properties. Order 21 R. 78 provides as follows : "No irregularity in publishing or conducting the sale of moveable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compen­sation in default of such recovery." I It cannot, therefore, be1 argued that no application under Sec. 47 was maintainable. (40) The next question is whether the words 'No irregularity in publishing or conducting the sale of move-able property shall vitiate the sale in Or. 21 R. 78 will be a bar to the powers of the executing court acting under Sec. 47 to set aside a sale or 0. 21 R. 78 provides the manner of setting aside the sale by means of a regular suit. To my mind 0. 21 R. 78 does not provide for a remedy for setting aside the sale by means of a suit. 21 R. 78 provides the manner of setting aside the sale by means of a regular suit. To my mind 0. 21 R. 78 does not provide for a remedy for setting aside the sale by means of a suit. It only lays down that if the sale is sought to be set aside even by means of an application under Sec. 47, on the ground of any irregularity in publishing or conducting the sale, the sale cannot be set aside, and the only remedy of a person who has sustained any in­jury by reason of such an irregularity is to bring a suit for damages. '' (41) The question which next arises is what is1 the. meaning of the words 'irregularity in publishing or con­ducting the sale'. In interpreting these words assistance can be taken from the cases under 0. 21 R. 90. Two things are essential before 0. 21 R. 78 can be attracted, firstly that the judgment-debtor should allege an irregula­rity and secondly that it should be an irregularity in pub­lishing or conducting the, sale. The meaning of the term 'irregularity' is wide enough to include even an illegality and connotes want of conformity to some recognised rule or procedure. In fact there is no distinction between a material irregularity and an illegality in the conduct of a sale and in one sense whatever is irregularity is also ille­gality. It is only a matter of degree. To my mind if a certain recognised procedure has not been followed which renders the sale a nullity, it cannot be said to be an irregularity in publishing and conducting the sale. As a result of non-compliance with any rule or procedure if in the eye of law the sale can be held to be non-existent, it cannot be said to be an irregularity relating to publishing and conducting the sale. If, how-ewer, the irregularity of procedure pointed out does not affect the validity of the sale itself, then undoubtedly it will be an irregularity in the publication and conduct of the sale. The question at once arises whether, if the sale proclamation is issued without mentioning the time and place and if the sale, proclamation is drawn up with­out notice under 0. 21 R. 66(2), it can be said that the consequent sale is no sale in the eye of law. The question at once arises whether, if the sale proclamation is issued without mentioning the time and place and if the sale, proclamation is drawn up with­out notice under 0. 21 R. 66(2), it can be said that the consequent sale is no sale in the eye of law. (42) Order 21 R. 66 (2), Civil Procedure Cods makes it obligatory to issue notice to the decree-holder and the judgment-debtor before drawing up the sale proclamation. The provision on the plain language of 0. 21 R. 66(2) is mandatory. Further this provision also lays down that the time and place of the sale shall be mentioned. Thus the mentioning of the time and the place of sale is mandatory. Regarding the other particulars to be given in the sale proclamation, it only says that they are to be specified as fairly and accurately as possible. Thus on the language of 0. 21 R. 66(2) it is legitimately argued by the ap­pellant that the provision of notices and the requirement of the time and place are mandatory, but the other matters to be mentioned are only directory. Any violation of a mandatory requirement will render the sale a nullity. The difference between a mandatory requirement and a direc­tory requirement is that in the former case all action taken in disregard of such a provision is a nullity, while in the case of a directory nature of provision the action taken in violation of those requirements may not neces­sarily render the action a nullity. The other test for hold­ing whether a provision is mandatory or directory is whether such a requirement can be waived by a party concerned. The sale proclamation is to be drawn up by the Court and it cannot be said that the notice under 0. 21 R. 66 (2) can be waived by the decree-holder or the judgment-debtor. Nor can it be said that the requirement of time and place to be mentioned by the court can be waived by the decree-holder or the judgment-debtor. The object underlying the requirement is that there should be suffi­cient number of bidders at the auction and the property should fetch a proper and a reasonable price and that the decree-holder may not take advantage of the absence of the time and place and purchase the property at a low price. The object underlying the requirement is that there should be suffi­cient number of bidders at the auction and the property should fetch a proper and a reasonable price and that the decree-holder may not take advantage of the absence of the time and place and purchase the property at a low price. Further it is urged by the respondents that the preparation of the sale proclamation is a part of the conduct of sale and if any irregularity is committed in the drawing up of the sale proclamation, it cannot be said that such an irregularity does not relate to the publication and conduct of the sale and thus 0. 21 R. 78 will not be attracted. If this argument is accepted, then even if the sale takes place without the drawing up of the sale proclama­tion or publishing the sale proclamation, it will be a mere irregularity relating to the publication and conduct of the sale. The decree-holder can manage to get the auction sale held at the residence of the authority which has power to conduct sale, without any notice under 0. 21 R. 66(2) and without the knowledge of the judgment-debtor or anybody else of the public and yet such a defect will only be an irregularity in publishing and conducting the sale, lit my judgment 0. 21 R. 78 cannot be interpreted to mean that every mistake or procedure committed in drawing up the sale proclamation, whether it goes to the very root of the jurisdiction or whether it violates a re­quirement which has to be observed anterior to the drawing up of the' sale proclamation, will be only an irregularity in conducting and publishing the sale. (43) The authorities on this point have already been dealt with by my brother in his judgment. I would only like to refer to some of them. In the case of ILR 16 Cal 794 a property advertised for sale under Sec. 287, Civil Procedure Code was sold on the date fixed, but at. an earlier hour than that stated in the proclamation. I would only like to refer to some of them. In the case of ILR 16 Cal 794 a property advertised for sale under Sec. 287, Civil Procedure Code was sold on the date fixed, but at. an earlier hour than that stated in the proclamation. It was held by Petheram, C. J. that in such a case there has been no sale within the meaning of the Code of Civil Procedure, as the proclamation of the time and place of sale and the holding of the sale at such time and place are conditions precedent to the sale being a sale under the Code. The learned Judge said that it is clear from the provisions of the Code that if the time and place Is specified, the sale must take place at the time and place advertised and if it does not take place at that time and place, it will be treated as if no sale has taken place under the Code. Although the case reported in ILR 7 All 676 is not referred to in this case, that was also a judgment delivered by Petheram, C. J. The same view was followed in the case of ILR 9 All 511. In the case of ILR 44 Mad 35 : (AIR 1921 Mad 583} it was held that where a proclamation of sale1 of lands in execution of a decree, as framed by the Court, was not published in the village where the lands were situate but the process-server intimated at the village that the sale would be held at a place and by an officer different from those fixed by the proclamation, a sale held at the place and by the official fixed by the proclamation is illegal and a nullity and not merely 'irregular' within the meaning of 0. 21 R. 90, Civil Procedure Code. In this case an appeal was filed against the order of the District Judge purport­ing to have been passed under 0. 21 R. 90 setting aside the sale. The Madras High Court upheld the order of the court below setting aside the sale, though it held that it was not a case covered by 0. 21 R. 90 but was one covered by Sec. 47, Civil Procedure Code. The fol­lowing observation at page 38 (of ILR Mad) : (at pp 584-585 of AIR) may be apposite :- "Mr. The Madras High Court upheld the order of the court below setting aside the sale, though it held that it was not a case covered by 0. 21 R. 90 but was one covered by Sec. 47, Civil Procedure Code. The fol­lowing observation at page 38 (of ILR Mad) : (at pp 584-585 of AIR) may be apposite :- "Mr. Krishnaswami Ayyar, on behalf of the appellant, has referred to a number of authorities dealing with the facts in particular cases, which were or were not held to constitute irregularities or illegalities. It is unneces­sary to go through those cases, because the decision in each rested on the facts in it, and because it does not appear that any general rule for distinguishing between an irregularity and an illegality has ever been laid down. It would appear, in fact, that the distinction is one of degree, and that an irregularity of so serious a nature as to render impossible the publicity which affords one main security for the fairness of public sales must be deemed to be an illegality." (44) The respondents have very strongly relied upon the case of (S) AIR 1957 Andh-Pra 185. The facts of this case are that art application was filed by the judgment-debtor for setting aside a sale on the ground that he failed to furnish security within the time prescribed. A certain property was sold in execution of a decree and one of the judgment-debtors filed an application under Sec. 47, Civil Procedure Code for setting aside the sale on the ground amongst others that there was omission of notice to the petitioner under 0. 21 R. 66 (2) before the settlement of the terms of the sale proclamation as re­quired by the Civil Procedure Coda Under 0. 21 R. 90 the judgment-debtor was directed to furnish security and as he failed to do it, the application was dismissed. The point raised in appeal was that as the want of notice to the petitioner under 0. 21 R. 66(2) before the settlement of the terms of the sale proclamation fell under Sec. 47, Civil Procedure Code, the court below had no jurisdiction to ask him to furnish security. The point raised in appeal was that as the want of notice to the petitioner under 0. 21 R. 66(2) before the settlement of the terms of the sale proclamation fell under Sec. 47, Civil Procedure Code, the court below had no jurisdiction to ask him to furnish security. The counsel for the res­pondent has, as evident from the referring order at page 186, conceded that one of the grounds fell under Sec. 47, but argued that the ground of the want of notice fell under 0. 21 R. 90. The following question was referred to the Full Bench: "Whether non-service of notice under 0. 21 R. 66 (2), Civil Procedure Code, is an irregularity in publishing and conducting an execution sale?" On reference the leading judgment was given by Bhima-sankaram with which Subba Rao, C. J. agreed. The Full Bench answered the reference in the affirmative. The Full Bench thus held that the non-issue of notice was an irregularity in publishing and conducting the sale. From the perusal of this judgment, it will appear that the main question to which the Full Bench applied its mind was whether the want of notice is an irregularity in the con­duct and publication of the sale and not to the question whether such a defect will be an illegality and not a mere irregularity. The cases of ILR 7 All 676 and ILR 16 Cat 794 do not seem to have been considered by their Lordships of the Andhra Pradesh High Court. The controversy which has been examined in the Andhra Pradesh case is as to the point of time at which the conduct of the sale can be said to have commenced. The view of the Full Bench is that all matters after the passing of the order of sale relate to the conduct of sale but matters anterior to the passing of the order of sale will not be matters relating to the conduct of the sale. To that extent there was some difference of opinion. The extreme view held by some courts that the conduct of the sale starts after the sale proclamation is published was not accepted. The case of AIR 1958 Bom 278 has taken a contrary view. (45) The next case referred to is the case of AIR 1360 Ail 510. This is a decision by a single bench of the Allahabad High Court. The case of AIR 1958 Bom 278 has taken a contrary view. (45) The next case referred to is the case of AIR 1360 Ail 510. This is a decision by a single bench of the Allahabad High Court. In that case the earlier case re­ported in ILR 7 All 676 which I have already referred to has been distinguished on facts. Although it has 'been observed in that case that certain observations made in ILR 7 All 676 are contrary to the later decisions of that Court, but there is no decision on the point as to whether the want of service of notice under 0. 21 R. 66 (2) wilt render the sale a nullity. I find it difficult to accept that if a mandatory provision such as mentioning the time and place of the' sale is violated, the sale cannot be said to be a nullity. (46) It was further argued by the counsel for the appellant that the first part of 0. 21 R. 78 has to be read along with the latter part of it and the extent and the ambit of irregularity which will vitiate a sale must be determined in the light of the latter part of 0. 21 R. 78. The argument is that in the cases where a suit can be filed for either the, recovery of the property or for dama­ges, the sale cannot be set aside under Sec. 47. It necessarily follows from this argument that cases where no suit can be filed, the sale can be set aside by art application under Sec. 47. In other words, where no suit can be filed, the case will not be one of an irregularity in conducting and publishing the sale. Thus there will be no bar to the setting aside of sales where no suit cart be filed under 0. 21 R. 78. In fact Mr. Ghose in his argument has contended that the right to get damages and the right in certain cases to get track the property is in substance the right to get the sale set aside. In other words the argument is that the suit under 0. 21 R. 78 is the only remedy available for setting aside a sale. If that argument is accepted, then obviously 0. In other words the argument is that the suit under 0. 21 R. 78 is the only remedy available for setting aside a sale. If that argument is accepted, then obviously 0. 21 R. 78 first part will not apply to the cases in which no suit can be filed for damages or for recovery of the pro­perty under the latter part of 0. 21 R. 78 and the only remedy will be to mate an application under Sec. 47, because it relates to the execution, discharge or satisfac­tion of the decree!. Cases which are covered by 0. 21 R:. 90 as I have already indicated, come within the scope of Sec. 47. But as on the ground of irregularity a special procedure has been provided for to challenge the sale by weans of an application under 0. 21 R. 90, an appli­cation under Sec. 47 may not be maintainable. If Or. 21 R. 78 provides the only way of challenging the sale, namely by means of a suit, them the matters which other­wise fall under the provision of Sec. 47 and are taken out of the jurisdiction of the executing court are those only in which a suit can be filed under 0. 21 R. 78. In the present case it cannot be disputed that no suit could lie either for damages or for recovery of the property. A suit for damages would lie only against a person at whose instance the injury has been caused to the plaintiff by reason of such irregularity. The irregularity should be at the hand of any 'other person which has resulted in the injury to the plaintiff. In the present case the injury if at all, has been caused to the judgment-debtor by non-compliance with certain mandatory provi­sions by the court and not by the decree-holder. There can be no suit for recovery of the property, for, it cannot be said that any injury was caused to the judgment-debtor at the hands of the auction purchaser. If Mr. Ghose's argument is accepted that the right of suit is the only remedy for setting aside the sale and thus the judgment-debtor is deprived of the right to move the court under Sec. 47, then under no circumstances it can be said that the injury in this case was due to the irregularity com­mitted -either by the decree-holder or by the 'auction pur­chaser. On that argument of Mr. Ghose the only remedy of the appellant will be to file an application under S. 47 and there will be no bar to the maintenance of such an application under the provisions of 0. 21 R. 78. (47) For the purposes of this case, however, it is not necessary to decide finally the question as to whe­ther the: scope of an irregularity in conducting and publish­ing the sale under the first part of 0. 21 R. 78 is con­fined only to the cases where the injured party could file a suit under the latter part of 0. 21 R. 78, or it is an absolute bar to the setting aside of the sale of immoveable properties. (48) This appeal is allowed. The order of the court below is set aside. The sale is set aside and the case is sent back, to the execution court to proceed with the execution from the stage prior to the drawing up of the sale proclamation and then follow the subsequent procedure' according to law. The parties will bear their own costs of this appeal. Appeal allowed.