JUDGMENT B. D. Agrawal, J. - This is plaintiffs' appeal. 2. The dispute is with respect to a grove situated outside Datia Gate (Idgah) within the municipal limits of Jhansi. On September 7,1932 Abdul Hai executed a simple mortgage to Hazari Lal and his father for Rs. 10,000/-repayable with interest in respect of a bungalow No. 29 (including the houses/out houses comprises therein) and two shops being numbers 191 and 192 specifying that the property was inherited by him from his father. Among the co-sharers including the mortgagor there was partition in O.S. No. 2 of 1936 brought about by final decree dated November 15, 1938 passed by the Civil Judge. Hazari Lal the mortgagee, instituted original suit No. 21 of 1946 on September 6, 1946 against Abdul Hai and others contending that sum of R. 14,987-50 was due to him on the mortgage. In original suit No. 2 of 1936 the property in Schedule 'B' (including the grove referred to at Item 26 B' of Original Suit No. 21 of 1946) fell to the share of Abdul Hai and his brothers. The relief claimed in Original Suit No. 21 of 1946 was that th share of Abdul Hai-the mortgagor in the property referred to in Schedule 'B' be partitioned and decree passed for recovery of the amount due by sale of the share of the mortgagor in the said property. 3. The parties entered into a compromise in original Suit No. 21 of 1946 which was recorded by the trial Court on March 23, 1948. This provided that the decree-holder the mortgagee shall be entitled to recover a sum of Rs. 10,000/- with interest at the rate of 3% per annum and that there shall be Commissioner appointed for the purposes of charging the property in Schedule 'B' of the plaint therein. Preliminary decree was drawn on August 4, 1948. In this decree, however, the compromise did not come to be incorporated. The final decree was prepared and also put to execution in execution Case No. 41 of 1952. There was sale in execution but on objection raised by the judgment-debtor this was set aside on September 7, 1953 by the execution Court. The decree-holder applied under Sections 151/152, Civil P.C. for the compromise dated 23rd March, 1948 being incorporated and made part of the preliminary decree. There was sale in execution but on objection raised by the judgment-debtor this was set aside on September 7, 1953 by the execution Court. The decree-holder applied under Sections 151/152, Civil P.C. for the compromise dated 23rd March, 1948 being incorporated and made part of the preliminary decree. This was registered as miscellaneous case No. 18 of 1953 and the application was allowed by order dated August 29, 1953 by the trial Court. 4. Certain co-sharers in the properties had migrated to Pakistan. Demarcation proceedings were initiated before the competent officer in case No. 39 of 1954. Under order dated September 30, 1958 the competent officer declared th share in the property as evacuee and the remaining th share as non-evacuee. There is no dispute that so far as Abdul Hai is concerned his share was found to be Non-evacuee. In terms of this declaration there was partition made by order dated March 13, 1959. Upon reconsideration of the partition scheme the competent officer under order dated April 23, 1962 directed release of the property which had been the subject-matter of transfer earlier by the non-evacuees. Jugul Kishore and his son (the appellants) had also put in application before the competent officer seeking release of the property on ground that the same had been transferred earlier. The competent officer in this connection observed : "It appears just and equitable that the properties which were once allotted to the share of the non evacuee co-sharers and which have been transferred by them to third persons should again be allotted to their share so that bona fide purchasers for value from them may not be put to any loss or inconvenience." 5. On July 20, 1967 Hazari Lai the decree-holder applied for final decree being prepared in Original Suit No. 21 of 1946 afore-mentioned. The amount claimed as due by him was Rs. 15797-50. In the application he referred to the compromise incorporated in the preliminary decree and also the partition affected on July 20, 1964 in terms of the order passed by the competent officer. Among the properties specified in regard to which the final decree was prayed for by sale for recovery of the mortgage amount was included the grove in question. Final decree was drawn by the trial Court under O. XXXIV, R. 5 of Civil P.C. on October 7, 1967. 6. Among the properties specified in regard to which the final decree was prayed for by sale for recovery of the mortgage amount was included the grove in question. Final decree was drawn by the trial Court under O. XXXIV, R. 5 of Civil P.C. on October 7, 1967. 6. Upon the final decree aforesaid being put to execution which was registered as execution Case No. 4 of 1968 there was objection raised by the appellants dated April 13, 1968 registered as Miscellaneous Case No. 11 of 1968. The objection was styled as being under O. XXI, R. 58 read with S. 151, Civil P.C. The execution Court rejected this objection on November 16, 1970 being of the view inter alia that this was not maintainable. Thereafter the appellants instituted Original Suit No. 114 of 1970 in November 23, 1970 giving rise to this appeal. 7. In an Execution Case No. 4 of 1968. It may be pointed out the grove in dispute was put to auction sale on April 11, 1968 through Court and this was purchased by Fajal Ahamad (respondent No. 15) for consideration of Rs. 8100/-. Subsequent to the objections filed by the appellants under 0. XXI, R. 58/S. 151 being rejected, the sale was confirmed on 16th November, 1970 and the certificate of sale issued on November 24, 1970. 8. Contention raised by the appellants in the suit is that they are bona fide purchasers for value from the heirs of Abdul Hai-the sale in their favour having been made through registered deed on December 22, 1957 and thereafter on March 21, 1959. The property covered in both these deeds is the same. A sum of Rs. 2,000/- was paid as consideration when the sale deed dated 22nd December, 1957 was executed; the declaration by the competent officer was made on March 11, 1959 and as a precautionary measure the appellants got the other deed of sale dated March 21, 1959 also executed for further sum of Rs. 2,000/-. The grove, it is also alleged, was not included in the deed of mortgage dated September 7, 1932 and the auction sale in respect thereof is void. It is claimed also that the petitioners are entitled to contend that the mortgage money be realised first by sale of other properties included in Schedule 'B'. The heirs of Hazari Lal deceased (defendants Nos. It is claimed also that the petitioners are entitled to contend that the mortgage money be realised first by sale of other properties included in Schedule 'B'. The heirs of Hazari Lal deceased (defendants Nos. 4 to 14) are alleged to be in collusion. The relief claimed is declaration that they are the owners of the grove in dispute and it is not liable to sale in Execution Case No. 4 of 1968. Permanent injunction is also claimed restraining the auction purchaser-defendant No. 15 from dispossessing the plaintiffs. The defendant No. 15 has resisted the suit refuting that the auction sale in his favour is invalid or that the plaintiffs have acquired title to the property. It is claimed that he has made purchase bona fide for payment to the knowledge of the appellants-plaintiffs. The suit is barred by limitation also. 9. The trial Court dismissed the suit on. February 24, 1973 being of opinion that the plaintiffs have not acquired valid title to this grove by the purchase claimed to have been made by them from the heirs of Abdul Hai deceased. The title vests in the defendant No. 15. The plaintiffs are trespassers and as such they cannot seek permanent injunction in their favour. The frame of the suit seeking declaration was also found to be defective. There is no merit in the contention of the plaintiffs that the grove could not be put to sale in execution of the decree. The suit was barred by time as well, having been filed more than one year after April 11, 1968 when the sale in question took place. Aggrieved the plaintiffs have preferred this appeal. 10. The points raised for decision in the appeal may be stated as under : 1. Whether the claim raised by the appellants-plaintiffs is barred on the principle of lis pendens as incorporated in S. 52, Transfer of Property Act ? If so its effect. 2. Whether the application dated July 20, 1967 made by Hazari Lal-the mortgagee for final decree under Order XXXIV, R. 5, Code of Civil Procedure was barred by limitation ? 3. Whether the preliminary decree dated August 4, 1948 required registration under S. 17(2)(vi) of the Registration Act in order to be effective concerning the grove ? 4. 2. Whether the application dated July 20, 1967 made by Hazari Lal-the mortgagee for final decree under Order XXXIV, R. 5, Code of Civil Procedure was barred by limitation ? 3. Whether the preliminary decree dated August 4, 1948 required registration under S. 17(2)(vi) of the Registration Act in order to be effective concerning the grove ? 4. Whether the suit giving rise to this appeal was barred under Order XXI, R. 92(1/3) read with R. 89, Code of Civil Procedure ? 5. Is the sale dated April 11, 1968 in Execution Case No. 4 of 1968 relating to the grove in dispute vitiated by fraud or collusion ? 6. To what relief, if any, are the appellants entitled ? 11. Contention of Sri V. K. S. Chaudhary learned counsel for the appellants is that the sale obtained by the appellants on December 22,1957 or March 21, 1959 from the heirs of Abdul Hai is not hit on the principle of lis pendens (as contained in S. 52, Transfer of Property Act) because, it is urged, the grove in question was not the subject-matter of the plaint registered as O.S. 21 of 1946 dated September 6, 1946 and, upon being included in the preliminary decree subsequently, this would not acquire the character of being directly involved in dispute. This submission, it would appear may not be sustained on facts or in law. 12. I have referred above the background in which O.S. 21 of 1946 was filed by Hazari Lal, the mortgagee. The deed of mortgage executed by Abdul Hai on September 7, 1932 was in respect of unspecified share in a bungalow and two shops described therein as acquired by inheritance (Ex. 19). The grove no doubt is not referred to in the deed of mortgage. But subsequent to this there was partition among the co-sharers (including Abdul Hai) deriving interest through the common ancestor, Abdul Ghani. This was by O.S. 2 of 1936 instituted by one of the sisters of Abdul Hai culminating in the final decree dated 15th November, 1938. In that decree the property specified in Schedule 'B' appended to the plaint of O.S. 21 of 1946 fell try:_ the share of Abdul Hai and his brothers,-the share of Abdul Hai being-,th.All this may be found narrated in para 8 of the plaint in O.S. 21 of 1946 (vide Ex.16). In that decree the property specified in Schedule 'B' appended to the plaint of O.S. 21 of 1946 fell try:_ the share of Abdul Hai and his brothers,-the share of Abdul Hai being-,th.All this may be found narrated in para 8 of the plaint in O.S. 21 of 1946 (vide Ex.16). The grove i n question is at item No. 26 of the Sehedule 'B'. The Schedule in its entirety is incorporated it in the preliminary decree dated August 4, 1948 (Ex. 11). This is admitted also by the appellants in para 3 of their plaint in O.S. 114 of 1970 giving rise to this appeal. Therein it is said too that Schedule 'B' of O.S .21 of 1946 is reproduced as Schedule 'A' of O.S 114 of 1970; the grove in dispute is at item No. 26 Not only this, the Court below further took care to summon the original record of O.S. 21 of 1946 and verified, as it state. "In Schedule 'B' of the plaint of that suit, it is found that the disputed grove was mentioned." The question is not whether in the absence of there being mortgage of this grove as appearing from the deed of hypothecation, it could acquire the character of substituted security. The material fact is that the grove did form part of the subject-matter of dispute in O.S. 21 of 1946; there was relief sought in respect thereof too to the effect that there be partition by metes and bounds of the property in Schedule B' and th share be allocated to Abdul Hai and further that there be recovery of the sum of Rs. 14,987-50 due on the mortgage by sale of the property which may fall to Abdul Hai's share in the partition prayed for. For the recovery of the mortgage amount thus the mortgagee sought specifically to proceed by sale in auction in respect of this grove as well. 13. The other limb of the argument for the appellants that to attract S. 52, Transfer of Property Act, the property concerned must be in dispute right from the inception of the suit or else lis pendens is out of question. is, to my mind, equally untenable. 13. The other limb of the argument for the appellants that to attract S. 52, Transfer of Property Act, the property concerned must be in dispute right from the inception of the suit or else lis pendens is out of question. is, to my mind, equally untenable. To apply S. 52 the essential ingredients are : (i) the pendency of any suit or proceeding; (ii) the Court must have jurisdiction over the person or property; (iii) the property must be specifically described and be necessarily affected by the termination of the suit or proceeding. 13A. The expression used is "during the pendency ........ of any suit or proceeding". Learned counsel refers to the Explanation which reads as under :- "For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." 14. I am unable to see Merit in the contention that the property be shown to be in dispute-right from the inception of the suit or proceeding. This may get involved at any stage throughout the, span of the commencement of the suit or proceeding and its termination. That too would be 'during' the pendency; true the right to property has to be directly and specifically in question and involved in the ultimate adjudication of the right of the parties 'During' signifies, "Throughout the course of; throughout the continuance of; in the time of; after the commencement and before the execution of" (Black's Law Dictionary 5th Edn., p. 453). The submission that unless the property forms part of the plaint, the third party will have no notice of the proceedings to put in defence carries little weight-the reason being that to apply S. 52 notice to the third party affected of the suit or proceeding is not a pre-requisite. In Mt. Wali Bandi Bibi v. Mt. The submission that unless the property forms part of the plaint, the third party will have no notice of the proceedings to put in defence carries little weight-the reason being that to apply S. 52 notice to the third party affected of the suit or proceeding is not a pre-requisite. In Mt. Wali Bandi Bibi v. Mt. Tabeya Bibi, (1919) 50 Ind Cas 919 cited for the appellants, the sale took place at the time when the immovable property was not in dispute since till then there had been no amendment made in the plaint and this constitutes the clear distinguishing feature. The decision in Abdul Ghaffar Khan v. Ishtiaqa Ali, (1944) 210 Ind Cas 326 (FB) is of no assistance either to the appellants. There it was observed "..........it appears-to me to be impossible to hold on the facts of the present case that right to immovable property was ever directly and specifically in question. No question of any charge arose before the arbitrator gave his award nor did it arise even afterwards. The only question the Court had to decide on application under S. 20 Schedule II was whether the matter had been referred to arbitration; whether an award was made thereon and whether there were any grounds for remitting the same or setting it aside." 15. The decision in K. Jagannathan Kone v. Ram Chandra Naidu, (1936) 165 Ind Cas 453 cited also for the appellants serves rather to support the respondent. According to the rule therein, wherein a suit for recovery of possession and mesne profits on an application for plaintiff to appoint Receiver, the defendant is required by the Court to furnish security which he does in favour of the Court and the property is subsequently alienated, the alienee, it was held, cannot resist the plaintiffs' execution to proceed against the property in satisfaction of decree for mesne profits on ground of want of notice, because lis pendens applies." Thus the property is made the subject matter of litigation and is brought within the jurisdiction of the Court and it follows that one who purchases the same should be bound by the judgment or decree thereafter rendered". 16. 16. The decision of the Madras High Court in (1936) 165 Ind Cas 453 supports also the proportion that if the decree declares a charge on any particular property, the litigation thereafter become one in which right is in question and subsequent transfer of the property will be affected by lis pendens. 17. In the instant case, in terms of the compromise which the trial Court in O.S. 21 of 1946 recorded on 23-3-1948, there was to be partition and allotment of th share, to Abdul Hai (defendant No.. 1)' out of the property in Schedule 'B' of that suit and preliminary decree was to be passed under Order XXXIV, R. 4, C.P.C. for recovery of the decretal amount i.e. a sum of Rs. 10,000/- with interest at the rate of 3% per annum by sale of the share allotted to the mortgagor. This compromise, as stated above, was made part of the preliminary decree by specific order of the trial Court dated August 29, 1953. There may be no dispute that in case of partition or recovery of the mortgage amount the proceedings commencing in the form of a suit do not terminate for so long as the final decree is not drawn. Upon the culmination of the proceedings before the competent officer resulting in the demarcation of evacuee and non-evacuee properties wherein the grove in question and certain other properties fell to the share of Abdul Hai, the decree-holder applied on 20th July, 1967 for final decree being drawn under Order XXXIV, R. 5, C.P.C. vide Ex. 13; the final decree was prepared on 7th October, 1967 and in execution thereof registered as Execution Case No. 4 of 1968, the grove was sold in Court auction to the contesting respondent for Rs. 8100% on April 11, 1968: the sale was confirmed on November 16, 1970 and' the certificate of sale issued on 24th November, 1970. Thus event if. it were assumed, though that would be purely hypothetical upon the facts hereof, that the grove was not the subject-matter of the suit right from its inception in the year 1946, this did find. 8100% on April 11, 1968: the sale was confirmed on November 16, 1970 and' the certificate of sale issued on 24th November, 1970. Thus event if. it were assumed, though that would be purely hypothetical upon the facts hereof, that the grove was not the subject-matter of the suit right from its inception in the year 1946, this did find. place in the preliminary decree in terms of the compromise dated 23-3-1948 made part of the decree by order dated 29th August, 1953 and the sale which the appellants obtained from the heirs of Abdul Hai on December 22, 1957 or subsequently on April 21, 1959 (Ex. 15) is inescapably hit by lis pendens. The effect of the rule is that this sale is rendered subservient to the rights of the parties to the action as determined by the judgment or decree. The sale cannot, in other words, serve to defeat the right which the decree-holder Hazari Lal acquired by virtue of the final decree in O.S. 21 of 1946 to proceed in execution by auction sale of the property to recover his mortgage dues and the consequent title created in the auction purchaser-respondent as a result of the auction sale dated April 11, 1968. 18. The point is answered accordingly. Point No. 2 : 19. The next submission of the appellants' learned counsel is that the application made by Hazari Lal the decree-holder on July 29. 1867 (20-7-1967 ?) for preparation of final decree under O. XXXIV, R. 5, C.P.C. was barred by limitation. The limitation under the residuary Article 137 of the Limitation Act, 1963 corresponding to Article 181 of the old Act (these admittedly are the provisions relevant) is three years commencing from the date "when the right to apply accrues". It may be said that in terms of the compromise leading to the preliminary decree dated August 4, 1948, right accrued to the decree-holder on that date itself to apply for the partition being affected and the decree-holder could not have waited on till the demarcation by the Competent Officer (referred to by Sri S. N. Varma, learned counsel for the respondent) was affected on July 20, 1964. But then it may not be overlooked that according to the settled principles, the final decree is not a nullity or passed by the trial Court without jurisdiction even if it was passed on application filed after the expiry of limitation, and secondly, the suit giving rise to this appeal, is.not for setting aside or cancellation of the preliminary decree dated August 4. 1968 or the final decree dated 7th October, 1967 passed in Original Suit No. 21 of 1946 for that matter. The decree has remained unchallenged. No prayer has been made that decree be declared invalid against the plaintiffs and there being nothing against the publication or conduct of the auction sale as contemplated under Order XXI, R. 90, C.P.C. it cannot be set aside while the decree which has led to it holds good vide Patroo Lal Mst. Parbhawati Kuer, AIR 1943 All 214 . In Gobardhan Das v. Dav Dayal, AIR 1932 All 273 (FB). Sulaiman, J. observed at page 281. "..........a decree passed in a suit which was time barred is binding on the parties, and the question of limitation is by implication seemed to have been decided against the defendant ........ a wrong decision, whether express or implied on a question of limitation does not oust the jurisdiction. Limitation is question of procedure and not one of jurisdiction; Nathu Ram v. Kallan Das, (1904) ILR 26 All 522. The Court was seized of the case and was competent to pass orders on the application. The mere fact that it overlooked the bar of limitation or acted wrongly in not applying it, would not make the order without jurisdiction. 20. Reference is also apposite to Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907 in which the Supreme Court held : "Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide 'wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right, or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 PC 85 and contended that since the Court is bound under the provisions of S. 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that S. 3 of the Limitation Act is peremptory and that it is the duty of the Court to take notice of this provision and given effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity." 21. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity." 21. Therefore, the auction sale dated April 11, 1964 impugned in this case which is consequential to the final decree is not vitiated or rendered a nullity due to the application dated 20th July, 1967 for preparation of the final decree in O.S. 21 of 1946 being made beyond three years from the date of the preliminary decree. Point No. 3 : 22. Learned counsel for the appellants urged then also that the preliminary decree dated 4-8-1948 could be of no legal effect vis-a-vis the grove because it was not registered. Reliance is placed on the exception contained in Cl. (vi) of sub-sec. (2) of S. 17 of the Registration Act, in respect to 'a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding." The submission made is that the grove in dispute was not the subject matter of the suit and therefore, the compromise dated 23-3-1948 which constitutes the basis of the preliminary decree must have been registered under this clause in order to be valid. For the legal proposition there is reference made to Mt. Jagrani v. Bisheshar Dube, AIR 1916 All 1 (FB); Ramgopal v. Tulsiram, AIR 1928 All 641 (FB); Mt. Mahadei Kunwar v. Padarath Chaube, AIR 1937 All 578 (FB) and Jogi Das v. Fakir Pande, AIR 1970 Orissa 22. There is no controversy concerning this abstract proposition but the crucial question remains whether the compromise dated 23-3-1948 that forms part of the preliminary decree in the instant case involves the recognition of a transfer. If to this the answer is in the negative. S. 17(2)(vi) is not attracted. It is after all the dominant intention of the parties which guides the construction of the contents of the document. If to this the answer is in the negative. S. 17(2)(vi) is not attracted. It is after all the dominant intention of the parties which guides the construction of the contents of the document. In Girdhari Lal v. Hukum Singh, AIR 1977 SC 129 it was laid down that : "Even though the decree of a Court embodies an agreement between the parties, we do not think that the agreement between the parties placed before is involving the recognition of a transfer, could require registration under the terms of the compromise decree necessarily involved the execution of a deed of conveyance also." 23. (See also Smt. Nai Bahu v. Lala Ramnarayan. AIR 1978 SC 22 ). Applying this criterion, and, this apart, recalling, as found in the discussion under point No. 1 above that the grove in question was the subject-matter of U.S. 21 of 1946 from its inception, no question of registration of the compromise can be claimed to arise under S. 17(2)(vi) of the Registration Act. The grove in its entirety, was directly and substantially under dispute in U.S. 21 of 1946 there being relief sought for its partition and allocation of th share and also its sale for realisation of the mortgage amount. 24. This answers also the counsel's contention based upon O. XXXII, R. 3, C.P.C. (as it was before the amendment made by the Central Act, 1976) to the effect that the compromise for being recorded or made the basis of the decree had to be in respect of the whole or any part of the subject-matter of the suit vide Krishna Kant Misra v. Lalit Mohan Sharma, 1969 All LJ 279 at p. 284. That would have been relevant had this grove not been the subject-matter of the Suit No. 21 of 1946 which on the contrary it was as revealed by para 8 and the reliefs sought read with the Schedule 'B' appended to the plaint of that suit. 25. The point is answered in the negative accordingly. Point No. 4 :- 26. Sri S. N. Verma learned counsel for the respondent urged that the objection which the appellants filed in Ex. 25. The point is answered in the negative accordingly. Point No. 4 :- 26. Sri S. N. Verma learned counsel for the respondent urged that the objection which the appellants filed in Ex. Case No. 4 of 1968 on 13-4-1968 could not be maintainable under Order XXI, R. 58, C.P.C. There was no application filed under R. 89, 90 or 91 of Order XXI; the sale became absolute as contemplated under sub-rule (1) of R. 92 and was followed by the issue of the certificate of sale. In view of sub-rule (3) of R. 92, it is added, the suit giving rise to this appeal could not lie. This contention was countered for the appellants with the argument that the bar of R. 92(3) read with R. 89 is inapplicable where the person suing isa third party claiming paramount title in himself and pleading that the judgment-debtor had no surviving right, title or interest in the property put to auction sale and there is no order against him within the meaning of Order XXI, R. 92(3). Having given careful thought to the 'submissions I find sufficient merit in what Sri Chaudhary argues in this respect. 27. Dispute is not raised before me on the point that there could be no objection filed by the appellants under Order XXI, R. 58, C.P.C. The reason obviously is that herein there was no attachment preceding the auction sale. The execution proceeded on the footing that there was the final decree contemplated under Order XXXIV, R. 5, Civil P.C. for sale of the property specified therein to recover the balance of the mortgage money. The objection of the appellants dated 13th April, 1968 under Order XXI, R. 58/S.151, C.P.C. could not, therefore, be sustained under these provisions and was rightly rejected on 16th November, 1970 being not maintainable. 28. The words "any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale" in sub-rule (1) of R. 89 have been substituted by the Amendment Act, 1976, by the words, "any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person". 29. The appellants are not the judgment debtors. In substance their plea has been that before the date of the auction. 29. The appellants are not the judgment debtors. In substance their plea has been that before the date of the auction. sale, the judgment-debtors had transferred their interest in the grove and therefore there was no subsisting right or title of theirs to be proceeded against. Rule 89 (as amended by this Court) envisages application at the instance of the judgment-debtor or any person holding an interest in the disputed property. 30. Order XXI, Rule 89(1) provided for application by "any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale." For these words this Court by amendment substituted the words "the judgment-debtor, or any person deriving title through the judgment-debtor, or any person holding an interest in the property." In R. 92(1) the provision made is that where no application made under R. 89, R. 90 or R. 91 or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. Rule 92(3) lays down that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made. 31. For the appellants to have invoked R. 91 is out of question because this rule envisages the purchaser at the auction sale in execution of a decree applying to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. Rule 90 comes in where the allegation is of fraud or material irregularity in publishing or conducting the sale in execution of a decree. For purposes of R. 89 the applicant has to deposit the balance of the decretal amount payable to the decree-holder and 5% of the purchase money to be paid to the auction purchaser. The appellants are not the judgment-debtors; having made purchase on 22-12-1957/21-3-1959 it may be said that they are persons deriving title through the judgment-debtor, or, even persons holding interest in the property, as contemplated under R. 89 (as amended by this Court). But the crux of the dispute remains whether on this account alone it should have been incumbent upon the appellants to apply under R. 89 and will their failure in this behalf attract the bar of R. 92(3). But the crux of the dispute remains whether on this account alone it should have been incumbent upon the appellants to apply under R. 89 and will their failure in this behalf attract the bar of R. 92(3). To this in my considered opinion the answer is clearly in the negative. 32. If there is sale made in execution of decree of property which at the relevant date did not belong to the judgment-debtor and. had been acquired through purchase by a third person from the judgment-debtor prior to the auction sale, there is obviously a wrong done to him. To this wrong there must be a remedy. Rule 89 is not the remedy because thereunder the Court will not grant relief to him on the strength of his paramount title. The Court will instead insist upon his making the requisite deposit to get the property released. I see force in the contention that a person who is not a party to the decree or the judgment-debtor and the property purchased by whom is not encumbered cannot be under obligation to pay up the decretal amount or compensate the auction purchaser. The provisions of R. 89 are in the nature of an indulgence to the judgment-debtor or others covered thereunder in the form of a 1st opportunity upon the terms of satisfying the decretal debt and of paying compensation to the auction purchaser, for the loss of bargain. But these are not exhaustive. In the case of a sale under a mortgage decree, for example, the sale can be set aside under Order 34, R. 5 at any time before the confirmation of the sale on payment as provided under that sale even though a prior application under R. 89 may have been rejected. The bar created under R. 92(3) operates in relation to the person" against whom "such order" is made. The words "Such order" have reference to "the order confirming the sale" appearing in sub-rule (1) preceding. The sale, it is true, thereupon becomes absolute but this is only consequential to the confirmation. That too would in the context operate against such person only for whom it be incumbent to avail of the summary remedy under Rr. The words "Such order" have reference to "the order confirming the sale" appearing in sub-rule (1) preceding. The sale, it is true, thereupon becomes absolute but this is only consequential to the confirmation. That too would in the context operate against such person only for whom it be incumbent to avail of the summary remedy under Rr. 89, 90 and 91, and not against one who banks upon his paramount title to the property and raises the issue that there was no right, title or interest of the judgment debtor to be conveyed by auction. Such a claim is foreign to the purview of these rules which would mean in other words that his ordinary remedy under S. 9, Civil P.C. or S. 34, Specific Relief Act, 1963 lies unaffected. This, in my view, is the interpretation which should be applied to R. 92(3)/(1) read with R. 89 in the contextual setting. 33. In Bhagwan Das Marwani v. Suraj Prasad Singh, AIR 1925 All 146, the suit to set aside the auction sale was based on the allegations that the plaintiffs were the victims of a fraud committed jointly by the judgment-debtors, the decree-holders, the auction purchaser and the pre-emptors. In reference to R. 89 of Order 21, it was significantly observed : "Rule 89 relates to an application by a judgment-debtor or any person interested in the property to set aside the sale after deposit of the decretal amount and the penalty. The present suit does not seek to set aside the sale on any such ground. It seeks to have the sale set aside on much larger grounds." 34. Rule 90 was inapplicable because the fraud alleged was not in the publishing or conducting of sale and to such a case the bar of R. 92(3) was not attracted. This was followed by a learned single Judge in Bhojai v. Salim Ullah, ( AIR 1967 All 221 ) wherein the fraud proved was not confined to the publication and the conducting of the auction sale but also covered and vitiated the decree which was sought to be set aside and to such a suit, it was held R. 92(3) did not create a bar. In Nan Bachchan v. Sita Ram, AIR 1977 All 126 the case was that the house in dispute was not liable to sale and attachment as it was not the exclusive property of the defendants 3 and 4 that the property was joint family property and the shares of the plaintiffs could not be auctioned. These allegations also, it was held, do not bring the case within the purview of R. 92(3) so as to disentitle the plaintiff from maintaining his suit. The plaintiff was not a judgment-debtor and was under no obligation to pay the amount of the decree in the execution of which the house in question was put to sale. In Bulaki Das v. Kesri, AIR 1928 All 363 relied for the appellants, the judgment-debtor brought a suit to recover possession of a certain property (other than mortgage property) alleging that the property was wrongly included in the auction sale by the mortgage in execution of his mortgage decree and purchased by mortgagee himself. ,The relief claimed being not for setting aside 'the sale on the ground of fraud in conducting or publishing the auction sale it was held that the suit was not barred under Order XXI, R. 92, Civil P.C. (See also Dal Chand v. Parshadi Lai, AIR 1947 All 400), Bairagi Charan Mohanti v. Basanta Priya Devi, AIR 1969 Orissa 67. In N. Krishnaiah Setty v. Gopalakrishna, AIR 1974 SC 1911 there was suit by the plaintiff for declaration that the sale held in execution of decree obtained by the appellant against their father and other members of the family was void ab initio being in contravention of the Mysore Agriculturists Relief Act. The Supreme Court upheld the contention though, it must be made clear, in that case there was no issue raised on the point of maintainability of the suit keeping in view R. 92(3). It is laid down in Ram Chandra Arya v. Man Singh, AIR. 1968 SC 954 that the auction sale is void if it is' held in execution of a decree which itself is void or a nullity and in such a case there is no bar arising due to Order XXI, R.89 or 90 for that matter. In that case the decree was passed against a lunatic without the guardian being appointed which contravened Order XXXII, R. 15 and was therefore, void. 35. In that case the decree was passed against a lunatic without the guardian being appointed which contravened Order XXXII, R. 15 and was therefore, void. 35. Reliance is placed by Sri Varma upon the dictum of the Supreme Court in Janak Raj v. Gurdial Singh, AIR 1967 SC 608 which was reiterated in S. Govindram Mahadik v. Devi Sahai, AIR 1982 SC 989 . The principle laid down is that if a sale in execution of an ex parte decree is made, the judgment-debtor is not entitled to get back the property even if the decree is reversed before confirmation of the sale. The policy of the legislature, it was observed, seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sale in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor if sales were allowed to be impugned 'merely because the decree was ultimately set aside or modified' (p.613). The confirmation though made later in point of time dates back to the date of the auction sale. The extinction of liability of the judgment-debtor subsequent to the sale having taken place is regarded ineffective as against the interest of the stranger auction-purchaser. $ut this cannot be taken to preclude a prior vendee from the judgment-debtor assailing the auction sale on ground that there was no subsisting title in the judgment-debtor at the time when the sale took place and the interest had passed instead to the suitor. Dealing with the conflict of judicial opinion on the question whether an auction purchaser at a Court auction, on finding that the judgment-debtor has no saleable interest in the property sold, has a right to sue for a refund of the purchase money on the ground of failure of consideration, the Law Commission in its 54th Report observed at page 189 : "It may not be feasible for the Court to enquire into the title of the judgment-debtor (at the time of the proclamation), in an elaborate manner; but that does not answer the basic question, namely, when a sale held by a Court and culminating in a certificate issued by the Court is held to be anullity for want of title, by reason of a defect discovered after expiry. of the period for making objections under R. 91 etc., is it justice to dispose of the purchaser's grievance by saying that the purchaser purchased the property at his peril ? The decree-holder should re-imburse him for the loss suffered by him, because it is the decree-holder at whose instance the sale was held. The abstract principle that there is no warranty at Court sales fails to yield a just result in this case." 36. Sub-rules (4) and (5) were inserted in R. 92 by the Central Act, 1976 in pursuance to this recommendation of the Law Commission. This now overrides the view taken earlier such as in Mangal v. Mathura Prasad, AIR 1935 All 470 . 37. Sri Chaudhary relies also on certain decisions to wit, Ran Bahadur Singh v. Salig Ram, AIR 1931 Oudh 1 (FB) and Sheoraj Singh v. Gajadhar Pd., AIR 1942 Oudh 465 (FB). The view propounded in these cases is that O. XXI, R. 58 provides only a summary remedy and is optional with the affected person. The failure to invoke does not prevent the claim being agitated in a declaratory suit, independent of O. XXI, R. 63.I am unable to accede to the appellants' contention before me that these provisions be regarded as analogous to O. XXI, Rr. 89 to 92. The provision in O. XXI, R. 63 is enabling while O. XXI, R. 92 creates a bar. The true reason why. in my opinion, the suit as in the present remains maintainable R. 92 notwithstanding is that the averments upon which it is founded are outside the purview of O. XXI, Rr. 89, 90, 91 even though the plaintiffs appellants claim to have had interest in the property when this was put to auction sale. 38. For the reasons given above, I find. that the provisions of O. XXI, R. 92 read with R. 89 do not debar the suit from which this appeal has arisen. Point No. 5 : 39. The appellants' learned counsel then submitted also that there was fraud and collusion in seeking execution of the decree by sale of the grove. The argument is that under order dated 23rd April, 1962 the competent officer had allotted certain properties (including this grove) to the non evacuees so that the bona fide transferees for value may not suffer. The appellants' learned counsel then submitted also that there was fraud and collusion in seeking execution of the decree by sale of the grove. The argument is that under order dated 23rd April, 1962 the competent officer had allotted certain properties (including this grove) to the non evacuees so that the bona fide transferees for value may not suffer. On March 3, 1967 the heirs of Abdul Hai made sale in respect of th share in shops Nos. 355, 356, 356/1 to Smt. Ramkali for consideration of Rs. 13,500/-(Ex. 18). The sale deed also recites that th share had transferred to one Mulchand on 21-3-1959 for Rs. 1875/-. The mortgage amount could have been realised by proceeding against any of those properties, and, hence Hazari Lal need not have proceeded to execute the decree, by sale of the grove. The argument is farfetched and highly conjectural. There is no proof that the decree holder was a privy or a consenting party to those other sales. In terms of the final decree he could legitimately proceed in execution against any one or more of the items of properties covered. It is difficult to infer fraud or an element of collusion into .the transaction. 40. The point is answered accordingly. Point No. 6 : 41. In view of the findings on points Nos. 1, 2, 3 and. 5 above the appeal fails. 42. The appeal is dismissed with costs to the respondent No. 15.