JUDGMENT Some interesting questions fall for consideration in this second appeal. They are (1) whether the remedy to set aside, or declare void, the court auction-sale for non-service of notice under Order 21 , rule 66 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) by the judgment debtor or his representative lies only in an application under section 47 of the Code and (2) whether in a suit by a court auction purchaser for recovery of possession, the judgment debtor or his representative is entitled to resist the suit on the score that the court auction sale is void? 2. The admitted facts relevant for the purpose are given below. The appellant is the first defendant in O.S.No. 488 of 1975, District Munsif's Court, Cuddalore, brought by the first respondent/plaintiff The second respondent is the second defendant in that suit. The first respondent's father obtained a money decree against one Kannan in O.S.No. 632 of 1962, District Munsif's Court, Cuddalore and had attached the property of the said Kannan in E.P. No 1944 of 1965. One Nagalingam filed a claim petition. E.A. No. 202 of 1966 and the same was allowed. Consequently, the attachment was raised. On 27th February, 1967, Nagalingam sold the said property to Murugesan the second defendant in O.S.No. 488 of 1975. On 15th March, 1975, the said Murugesan sold the property to the appellant. In the meanwhile the first respondent, aggrieved against the claim order made in E.A. No. 202 of 1966, instituted O.S. No. 668 of 1967 against Nagalingam and Murugesan, to set aside that order and the said suit was deereed. Immediately, the first respondent's father took proceedings in execution to have the attached property,; sold. It is enough to refer to the last E.P. No. 1154 of 1973 in which the property was sold in court auction on 22nd February, 1974. The first respondent was the auction purchaser. The said sale was confirmed on 7th June, 1964. In E.A. No. 2490 of 1974 delivery was ordered. 3. The plaintiff claims that he took delivery of the suit property on 30th November, 1974 under Exhibit A-3 and that just before the institution of the suit, the appellant/Ist defendant claiming title under the second respondent trespassed into the property. But according to the appellant the property continued to be in the possession and enjoyment of himself and his predecesser-in interest. But according to the appellant the property continued to be in the possession and enjoyment of himself and his predecesser-in interest. He also challenged the sale as void, as no notice was served on the judgment-debtor under Order 21 , rule 66 of the Code in E.P.No. 1154 of 1973. The lower court accepted the defence that no notice was served on the judgment-debtor therein, that the sale is void and as the plaintiff had no title to the property it, therefore, dismissed the suit with costs. It may be useful to point out that the trial court came to the conclusion that no notice was served because of the following endorsement in Exhibit B-13 “R.P. absent. Set ex parte. Sale proclamation 12th November, 1973. Ini K.P. Prl. D.M. 3rd November, 1973” On the strength of authority in Tarapore and Company v. VfO. Tracters Export, (1970)2 MLJ. (S.C)1; (1970) 1 S.C.J. 514: (1970)2 An. W.R. (S.C.) 1; A.I.R. 1970 S.C. 1168, however, the learned Subordinata Judge, Cudda-lore allowed the appeal and decreed the suitwith costs throughout. The learned Subordinate Judge held that the sole remedy of the judgment-debtor or his representative is to resort to Order 21 , rule 90 or section 47 of the Code and in this suit, the appellant or his predecessors-in-title is not entitled to challenge the court auction sale. 4. Mr. M. Srinivasan, the learned counsel for the appellant urged that as the sale is void, it need not be set aside and that. therefore, the suit brought by the auction purchaser can be successfully resisted’ by the judgment-debtor therein or his representative on the mere grouud that the sale is void. On the other hand, Mr. R.S. Venkatachari argued that as long as the void sale was not declared to be so under section 47 in that execution proceeding, it is not open to the appellant to plead the invalidity of the sale by way of defence. It is also contended by the learned counsel that the sale is void only as against the judgment-debtor or his representative on whom notice should have been, but was not served. 5. It is well settled that where there are irregularities in the conduct of publication of sale, such sale can be set aside only an application under Order 21 , rule 90 of the Code. 5. It is well settled that where there are irregularities in the conduct of publication of sale, such sale can be set aside only an application under Order 21 , rule 90 of the Code. See the authorities — (i) Rajagopala Ayyar v. Ramanujachariar, (1924) I.L.R. 47 Madras 288. 46 MLJ. 104; 19 L.W. 179. (F.B.).(ii) Dhirendranth Gorat v. Sudhir Chandra Ghosl, (1965) 1 S.C.J. 219: (1964) 6 S.C.R. 1001 : I.R. 1964 S.C. 1300. (iii) Jagneswar v. Kaila-sh Mandal, A.I.R. 1925 Caleutta 81. (iv) Natarajan v. Chandmull Amarchand, (1971) 1 MLJ 474 . 6. It is equally well settled that any court sale held without service of notice on the judgment-debtor as prescribed under Order 21 , rule 66 of the Code is void. It is because the power to sell the property in execution comes to vest with the court only after service of notice on the judgment-debtor under Order 21 , rule 66 of the Code. The authorities for the above proposition are: (i) Rajagopala Ayyar v. Ramanujachariar, (1924) I.L.R.47 Mad. 288. 46 MLJ. 104 (F.B.). (ii) Merla Ramanna v. Nallapparaju and others, 1956 S.C.J. 10: (1956) 1 MLJ. (S.C.) 71: (1956) 69 L.W. 875 (S.C.): (1955) 2 S.C.R. 938 . (iii) Thangalal v. Mohideen, I.L.R. (1976) 3 Mad. 297. (iv) Jogannath v. Perumal Naidu, (1955) 1 MLJ. 114 A.I.R. 1955 Mad, 233. (v) Natarajan v. Chandmull Amatchand, (1977) 1 MLJ. 474. (vi) Ramalingam Pillai v. Sankara Iyer, (1967) 2 M L.J. 299: I.L.R. (1964) 2 Mad. 370A.I.R. 1964 Mad. 424 and (vii) Dr.Cherian v. Ramasamy Naidu, (1980) 2 MLJ. 170 . 7. But the immediate question is whether the sale is void as against all or against the judgment debtor or his representative alone. Order 21 , rule 64 of the Code and subsequent provisions provide as to how the sale has to be processed in execution, the rights of the judgment debtor and the decree-holder to have the sale set aside. It is also necessary quote section 47 of the Code. It reads thus: “(1) 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. (2) Omitted by C.P.C. (Amend.) Act. It reads thus: “(1) 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. (2) Omitted by C.P.C. (Amend.) Act. 1976 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. (Substituted by C.P.C. (Amend.) Act, 6) Explanation I: — For the purposes of is section, a plaintiff whose suit has been dismissed and all parties to the suit. Explanation II-(a) For the purposes of this section ‘a purchaser of propety at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed and (b) all questions releating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions releating to the execution, discharge or satisfaction of the decree within the meaning of this section.)‘, The scheme behind Order 21 and section 47 of the Code clearly indicates that it is the right, title and interest of the judgment debtor alone that is brought to sale in execution and even if the property is sold in such court sale, what pases on to the auction purchaser is such right, title and interest of of the judgment debtor in the property concerned. The provisions deal with the rights and disabilities either of the judgment-debtor and his representative or of the decre-holder, but not of any third party. It stands to reason, therefore, that if my sale suffers from irregularity in the conduct of sale or if the sale is a nullity, such irregularity or nullity, as the case may be can be availed of by the judgment-debtor or his representative alone, but none else, To my support I have Merla Ramanna v. Nallaparaju and others, 1956 S.C.J. 101; 1956 S.C.R. 938: 2 A.I.R.1956 S.C. 87; Dheir-endranath Gorai v. Sudir Chandra Ghosh, (1965) 1 S.C.J. 219: (1964) 6 S.C.R. 1001 : A.I.R. 1964 S.C. 1300 and Dr. Cherian v. Ramasami, Naidu, (1980) 2 MLJ. 170 . Cherian v. Ramasami, Naidu, (1980) 2 MLJ. 170 . In the first case, Venkatarama Ayyar, J., speaking for the Supreme Court, held; “It was well-settled that the question whether an execution sale was in excess of the decree and, therefore’ not warranted by it could be raised is between the parties only by an application under section 47 of the Code before the executing court and not by a separate suit.” (Italics supplied by me). In the second case, the Supreme Court was concerned with the combined effect of section 35 of the Bengal Money Lenders Act and Order 21 , rules 64 , 66 and 90 of the Code. section 35 of the Bengal Money Lenders Act provided as follows: “Nowithstanding anything contained in any other law for the time being in force, the proclamation of the intended sale of property in execution of a decree passed in respect of a loan shall specify only so much of the property of the judgment-debtor as the Court considers to be saleable at a price sufficient to satisfy the decree, and the property so s pecified shall not be sold at a price which is less than the price specified in such proclamination: Provided that, if the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for sueh amount, if the decree-holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest amount bid and the price so specified.” Their Lordships of the Supreme Court held that though such a provision is mandatory, still it was open in the judgment-debtor to waive the right conferred on him under the said provisions, Their Lordships found in that case that by reason of non-observance of the provisions of section 35 aforesaid no substantial injury was caused to the judgment-debtor, that though the judgment-debtor filed petitions after service of notice he did not attend at the drawing up of the proclamation and that, therefore, Order 21 , rule 90 of the Code was immediately attracted. Thus, it is clear that the court sale inflicted with irregularity such as non-compliance of a mandatery provision of an enactment, which can be waived by the judgment-debtor can be availed of only by the judgment-debtor and that the remedy to set aside the sale is open to the judgment-debtor alone and that such remedy lies under Order 21 , rule 90, Civil Procedure Code, Their Lordships found notwithstanding the mandatory provision, it was open to the judgment-debtor to waive. That is a clear indication that non-ebservance of such mandatory provision was available only to the judgment debtor, Venugopal, J., in the third case had quoted with approval that sale held in execution of a decree without a notice to the judgment-debtor is a nullity and not merely voidable, but is void as against a person to when notice should have been but was not, issued. I am, therefore, unable to agree with Mr. M. Srinivasan, learned counsel for the appellant that illegal court auction sale can be taken advantage of by others as well who are neither tbe judg-ment-debtor nor his representative. Even the language employed in section 47 of the Code indicates that all questions arising bet-ween the parties to the suit in which the decree was passed 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, The irregularity or illegality in the court auction sale certainly relates to the execution. Then, I have no hesitation to conclude that it is only the parties to the suit who can take advantage of the irregularity or illegality affecting that court auction sale. 8. The intricate problem which requires consideration is whether even a sale, which is a nullity, has to be set aside under section 47 of the Code or whether the judgment-debtor or his representative can completely ignore the sale and successfully resist the action brought by the auction purchaser for possession on the ground that the sale is void ab initio. The intricate problem which requires consideration is whether even a sale, which is a nullity, has to be set aside under section 47 of the Code or whether the judgment-debtor or his representative can completely ignore the sale and successfully resist the action brought by the auction purchaser for possession on the ground that the sale is void ab initio. According to the learned counsel for the appellant as the sale is void ab initio, it need hot be set aside and that the resulting position is that either the judgment-debtor or his representatives are competent to plead the nullity of sale be way of defence in an action brought by and to defeat the the said claim of the auction purchaser. I find the following decisions do support the above contention of the learned counsel: (i) Rajagopalan Ayyar v. Ramanujachariar, (1924) I.L.R. 47 Mad. 288: 46 M.U. 104 (F.B.) (ii) Jagannath v. Perumal Naidu, (1955) 1 MLJ. 114 : A.I.R. 1955 Mad, 233, (iii) Ramalingam Pillai v. Sankara Iyer, (1964) 2 MLJ. 229 : A.I.R. 1964 Mad. 424.(iv) Thangalal v. M ohideen, I.L.R. (1976) 3 Mad. 297. The other decisions pressed into service by the learned counsel are: — (i) Parasurama Odayar v. Appaduai Chetty, (1970) 2 MLJ. 1 : I.L.R. (1970) 2 Mad. 393: 83 L.W. 137: A.I.R. 1970 Mad. 271, and (ii) Dr. Cherian v. Ramasami Naidu, (1980) 2 MLJ. 170 . In both these last decisions, the question as posed before me did not arise. On the other hand, both the appeals arise out of an execution application filed by the judgment-debtor. Therefore, these do not as such support the contention advanced by the learned counsel for the appellant. 9. It is true in Rajagoppala Ayyar v. Ramanujachariar, (1924) I.L.R. 47 Mad. 288: 46 MLJ. 104, a Full Bench of this Court has held that the sale without notice under Order 21 , rule 22 of the Code is a nullity and is void and that it has not got to be set aside. It was further held that if at all an application is taken to set aside such a void sale, it would fail under section 47 and the article that is applicable under the Old Limitation Act is 181 (137 of the present Act), but not 166. In Jagannath v. Perumal Naidu, (1935) 1 MLJ. 114: A.I.R. 1955 Mad. It was further held that if at all an application is taken to set aside such a void sale, it would fail under section 47 and the article that is applicable under the Old Limitation Act is 181 (137 of the present Act), but not 166. In Jagannath v. Perumal Naidu, (1935) 1 MLJ. 114: A.I.R. 1955 Mad. 233, a Division Bench of this Court held therein that it is very plain that a person's property cannot be sold without this being told and that, therefore, the entire proceedings were ab initie null and void and the sale did not therefore convey any of the rights of the judgment-debtor in favour of the auction purchaser. It has to be noticed that that was a suit brought by the auction purchaser against the judgmentdebtor and his brothers. In Ramalinga Pillai v. Sankara Iyer, (1964) 2 MLJ. 299: A.I.R. 1964 Mad. 424 Veeraswami, J., (as he then was) held that a suit for declaration or even for possession only, ignoring the sale as void, would be sufficient and that assuming that the remedy is an application under section 47 , the proper Article of Limitation Act applicable is Article 181 and not Article 166. It is relevant to notice that in that case the suit was instituted by the judgment-debtor for declaration that the sale was fraudulent and void and for preventive injunction or in the alternative for recovery of possession of the suit property. It is true that the learned Judge had observed that such a suit by the judgment-debtor to have the sale declared void and for possession is not barred by Order 21 , rule 92 of the Code. It is true that the learned Judge had observed that such a suit by the judgment-debtor to have the sale declared void and for possession is not barred by Order 21 , rule 92 of the Code. It is interestiug to note that when it was brought to the notice of the learned Judge that even such a sale could be challenged only on an application under section 47, the learned Judge observed; “Even if the remedy of the appellant is only under section 47, the suit regarded as one such application, was well within time.” Assuming that the learned Judge held that the aggrieved judgment-debtor can have the sale declared void and obtain other reliefs in a suit and that such a suit is not barred under Order 21 , rule 92 or section 47 of the Code, I find that the decision of the Supreme Court in Merla Ramanna v. Nallapparaju and others, 1956 S.C.J. 101: (1955) 2 S.C.R. 938 : A.I.R. 1956 S.C. 87 taking the contrary view has to prevail. So, too, the decision of the Full Bench and that of Varadarajan, J, (as he then was) referred to above may not be good law to the extent they held that the suit by the judgment-debtor to set aside a void sale is not barred under section 47 of the Code. It may be useful to notice that the ratio of the Supreme Court was not brought to the notice of Veeraswami, J., while Mr. Varadarajan J., referred to Nararaians Case, (1971) 1 MLJ. 474 which took note of the above Supreme Court decision but not notice of the ratio of the Supreme Court. 10. It may be noteworthy to point out that a decisions of the Division Bench in Chengalraya v. Kollapuri, A.I.R. 1930 Mad. 12 was approved by the Supreme Court in Merla Ramanna v. Nallapparaju and others, 1956 S.C.J. 101: A.I.R. 1956 S.C. 87. It is true the principle approved by the Supreme Court related to the ratio laid down by this court namely that Article 181 of the Limitation Act, 1908, was alone applicable to an application laid under section 47 of the Code; but the said Division Bench also ruled that the remedy of a judgment-debtor even in a case where the sale is void, lies under section 47 of the Code alone. It is reasonable therefore, to infer that even that principle was upheld by the Supreme Court in Merla Ramanna v. Nallapparaju and others1 At any rate, the principle was reiterated by the Supreme Court when it held that the remedy lay only under section 47 and not by a separate suit. Also the Division Bench of the Kerala High Court in Narayanan v. Thomakutti, A.I.R. 1967 Ker. 163 has held that even if the sale is void, it can be set aside only on an appli-cation under section 47. 11. As regards Venkataramanachariar v. Meenatchisundaram Ayyar, (1924) 19 MLJ. 1 (F.B), Thathu Naick v. k undu Reddy, I.L.R. (1909) 32 Mad. 1242 (F.B.) and Munishi China Danast v. Pedda Tatiah, (1921) 41 MLJ. 261 : 14 L.W. 424: A.I.R. 1921 Mad. 279, I must at the outset point out that the ratio laid down by the learned Judges were on the peculiar facts that were before them. For instance, in Venkata- ramanachariar's Case, the property was not the subject matter of the suit or decree. So too in Munishi China Dandasi v. Munishi Pedda Tatiah5, the property was not included in the mortgage suit or decree, but as fraudulently inserted in the sale certificate. The fraud was discovered long after the sale was confirmed. Thus, in those circumstances, each Division Bench in those decided cases held that a defendant is entitled to raise by way of defence to a sutt for possession by the auction purchaser the inaccuracy of the sale certificate. These are cases where fraud was “alleged and established. Therefore, it would not be fair on my part to say that the two Division Benches laid down the ratio in unqualified terms to the effect that even a void sale can be set aside in a separate suit brought by the judgment-debter, but not barred by section 47 of the Code. It so understood, I find there is no real conflict between the ratio laid down by the Supreme Court in Merla Ramanna v. Nallapparaju and others1 and the ratio laid down in these cases. My above analysis advises me to cenclude that tven a void sale cannot be challenged in a eeparate suit as section 47 of the Code opera-ses as a bar. 12. My above analysis advises me to cenclude that tven a void sale cannot be challenged in a eeparate suit as section 47 of the Code opera-ses as a bar. 12. I must immediately own that there are authorities which go to hold that any suit an instituted by the judgment-debtor can be treated as an application under section 47 of the Code, However, the learned connsel for the appellant submitted that the written statement filed in the present suit may be treated as an application under section 47. In Thathu Naick v. Kondu Reddi, (1909) I.L.R. 32 Mad. 242. (P.B.) where is the following observation of Sankaran Nair, J. ‘‘A plaint in a suit, in the Court executing the decree may be treated as an application under section 244 of the Code of Civil Procedure (corresponding Order 21 , rule 90). So also a written statement, containing an answer to the plaintiff's claim may be treated as an application under section 244.” occurs with great respect to the learned Judge, I am unable to follow the above line of approach. It is pointed out by the Supreme Court in Merla Ramanna v. Nallapparaju and other, 1956 S.C.J. 101: (1956) 1 MLJ. (S.C.) 71: (1956)69 L.W. 875 (S.C.): (1955) 2 S.C.R. 938 ; A.I.R. 1956 S.C. 87 that the cause of action to seek the remedy under section 47 accrues to the judgment-debtor only on the date of dispossession and that the appropriate article of limitation is 137 of the Limitation Act. Secondly, here on the endorsement found in the certified copy of the execution petition marked as Exhibit B.13, the trial Court criticised that the learned District Munsif, who made the endorsement did not apply his mind judiciously but held the service as sufficient mechanically. In fairness, all relevant papers touching the service should have been examine d before such a criticism is made. Was this objection taken in execution under section 47 ? certainly that court would have had the opportunity of examining the relevant records. 12. Before I part with this case, I make it clear that I have not decided whether the appellant is a representative of the judgment-debtor. According to section 47 , that question also should be decided on an application under section 47. 13. In the result, the second appeal fails and is dismissed, but without costs. R.S. ----- Second appeal dismissed.