A. K. SEN, B. C. CHAKRABARTI ( 1 ) THIS is a revisional application which is being heard on notice to opposite parties nos. 1 and 2. Opposite party no. 1 is appearing to contest and has filed an opposition. Opposite party no. 2, however, is not appearing though duly served with a notice of this application as per affidavit of service filed by the petitioner. ( 2 ) THE revisional application is directed against an order dated June 11, 1979 passed by the learned Additional District Judge, 7th Court, Alipore, in Misc. Appeal no. 649 of 1978 thereby affirming an order dated November 4, 1978 passed by the learned Subordinate Judge, 3rd Court, Alipore, in Misc. Case No. 23 of 1973. By the orders impugned the two Courts below have concurrently overruled the judgment-debtor petitioner's prayer for setting aside a sale held on March 20, 1973 in Title Execution Case No. 36 of 1970. It is not in dispute that the said sale was confirmed on April 23, 1973. The judgment-debtor filed an application for setting aside the sale on various grounds (set out in his application) under Order 21, rule 90 read with sections 47 and 151 of the Code. The said application was filed on May 2, 1973. ( 3 ) THE short point which has now been raised before us by Mr. Chatterjee appearing on behalf of the judgment-debtor petitioner is that the decree that was put into execution was a preliminary decree in a mortgage suit and not a decree for sale so that the executing court had no jurisdiction to sell the property in execution of such a preliminary decree. Though such a point was not specifically raised before the executing court it appears that such an objection was taken in the grounds of appeal preferred before the learned Additional District Judge. Neither of the two courts below, however, has gone into this aspect at all. To us, however, it appears that there is no answer to this objection raised by Mr. Chatterjee. We have carefully looked into the decree dated May 30, 1970 that was put into execution in Title Execution Case no. 36 of 1970 and in the execution where of the property was sold. To us, however, it appears that there is no answer to this objection raised by Mr. Chatterjee. We have carefully looked into the decree dated May 30, 1970 that was put into execution in Title Execution Case no. 36 of 1970 and in the execution where of the property was sold. There is no manner of doubt that the decree as aforesaid is a preliminary decree in mortgage suit which directed that in default of the payment of the amount adjudged within the time specified ?the plaintiff may apply to the court for a final decree for sale of the mortgage property and on such application being made the mortgage property or sufficient part thereof shall be directed to be sold. ? ( 4 ) MR. Banerjee appearing on behalf of opposite party no. 1 is not in a position to contest the claim of Mr. Chatterjee that the decree that was put into execution was a preliminary decree and not a decree for sale. Mr. Banerjee, however, has raised two objections. In the first place it has been contended by Mr. Banerjee that when such an objection was not raised in neither of the two courts below and when the property was sold for adequate value it cannot be said that the judgment debtor had suffered any material prejudice entitling the court to set aside the sale. Secondly, it has been contended by Mr. Banerjee that in any event on the concurrent finding of the two courts below when there had been no fraudulent suppression of notice or of the sale proclamation the application for setting aside the notice or of the sale proclamation the application for setting aside the sale is clearly time barred not having been filed within 30 days from the date of the sale. ( 5 ) SO far as the first point raised by Mr. Banerjee is concerned we are of the view that in the present case there had been a sale by the executing court wholly beyond its jurisdiction. As there was no decree for sale, as we have indicated hereinbefore the decree that was put into execution was a preliminary decree in a mortgage suit in execution whereof the mortgage property could not have been put up for sale. As there was no decree for sale, as we have indicated hereinbefore the decree that was put into execution was a preliminary decree in a mortgage suit in execution whereof the mortgage property could not have been put up for sale. It cannot also be said that the judgment-debtor petitioners had not suffered any material prejudice when there has been such a sale totally beyond the jurisdiction of the court holding the sale. In our view, adequacy of the value or not is not the consideration on which an objection of the present nature can be disposed of, more so when on the materials now before us it is not possible to hold that the property had been sold for adequate consideration. So far as the second objection raised by Mr. Banerjee is concerned, it is no doubt true that an application under Order 21, rule 90 has to be presented within 30 days from the date of the sale, such being the limitation prescribed by Article 127 of the Limitation Act. As we have indicated hereinbefore it is not a case of an irregular sale by a court otherwise competent to sell the property. It was beyond the jurisdiction of the court to effect the sale so that the real objection of the judgment debtor is that there had been no real sale in law and the entire transaction is void ab-initio. Truly speaking such a sale is not required to be set aside though it has to be adjudged as such. It is now well settled that an application for such a declaration or adjudication is governed by the residuary Article and three years is the period of limitation therefor. That had been the decision of this court throughout which had since been approved by the Supreme Court in the case of (1) Meria Ramanna v. Nallaparaju and others, AIR 1956 SC 87 . Such being the position, we are of the view that the second objection as to limitation raised by Mr. Banerjee cannot be sustained. ( 6 ) SINCE both the objections raised by Mr. Banerjee fail and since, in our view, there is no answer to the objection raised by Mr. Chatterjee disputing the validity of the sale it must be held that the sale held on March 20, 1973 in Title Execution Case no. Banerjee cannot be sustained. ( 6 ) SINCE both the objections raised by Mr. Banerjee fail and since, in our view, there is no answer to the objection raised by Mr. Chatterjee disputing the validity of the sale it must be held that the sale held on March 20, 1973 in Title Execution Case no. 36 of 1970, which had been confirmed on April 23, 1973 is a void sale and did not affect the right, title and interest of the judgment-debtor in the property sold. The orders passed by the two courts below being set aside, the application filed by the judgment-debtor petitioner which was registered as Misc. Case No. 23 of 1973 is allowed. ( 7 ) THE revisional application is disposed of accordingly. There will be no order as to costs. Application disposed of.