JUDGMENT V.P. Mathur, J. - This appeal purporting lobe under O. 43, R. 1 of the C.P.C. is directed against the judgment and decree passed by Sri C. L. Anand, the then II Addl. District Judge, Farrukhabad on 30-5-1978 in Civil Appeal No. 293 of 1967. It arose out of Original Suit No. 5 of 1946. The original suit was disposed of by Mr. Parmatma Swarup, the then Civil Judge, Farrukhabad, vide order dated 1-6-1967 and it had been dismissed with costs. The suit was filed by Ashraf Husain and six others and the main contestant was Smt. Zahida Begam-auction purchaser in a court sale. 2. In appeal the learned Additional District Judge upset the judgment of the trial Court by allowing the appeal and directed the remand of the case for fresh decision according to law on the question of fact revolving round the alleged fraud. Parties were left free to adduce evidence. Feeling aggrieved, Smt. Zahida Begam now comes up in this appeal. 3. Originally Zahida Begam was impleaded as defendant No, 2 in the case. The suit was instituted on 31-1-1946 and it was for possession on a grove and house detailed at the foot of the plaint and for recovery from defendants Nos.-1 to 3 and 10 of Rs. 907.50 p. as mesne profit, Rs. 750/- as price of the trees cut and the portions of the house demolished, and Rs. 700/- as damages with respect to the articles and bungalow. The house in suit was th portion of a house standing in Mohalla Madhai Kannauj of which the boundaries were given in the plaint and the grove in suit is No. 223/1 measuring 2.70 acres in village Tajpur. 4. The plaintiffs came with a pedigree given in the plaint and alleged that their ancestor Haji Ahmed Husain used to carry on the business of perfumes. Defendant No. 1 of the suit namely Hukum Singh obtained an ex parte decree in Suit No. 300 of 1930 from the Court of Munsif, Hathras against the plaintiff No. 1 and his brothers Ali Husain, Mazhar Husain and Tafazzul Husain. This decree was obtained on July 2, 1930. During the period 1930 and 1932, litigation went on between the plaintiff and his brothers Mazhar Husain and Tafazzul Husain and their descendants. Sadik Husain died on 26-5-1941. This decree was obtained on July 2, 1930. During the period 1930 and 1932, litigation went on between the plaintiff and his brothers Mazhar Husain and Tafazzul Husain and their descendants. Sadik Husain died on 26-5-1941. After the death of Tafazzul Husain and Mazhar Husain, the result was that the defendants Nos. 3 to 9 could not get any share in the property. They were, however, desirous to get the property in suit, which they could have got, if Sadiq Husain had survived his other brothers. Defendant No. 10 is the real maternal uncle of defendant No. 2 and was posted as Civil Courts Amin in Kannauj. Therefore, in collusion with defendant No. 2 he put the decree obtained by Hukum Singh in Suit No. 300 of 1930 to execution on 6-11-1942, although it had become barred by limitation. The property in suit was got wrongly sold in Court auction, although the sale was void, illegal and invalid, for reasons given in the plaint and details put in the lower Courts judgments. The plaintiffs have a share of 14/16 in the house and 12/16 in the grove. Ashraf Husain having died, plaintiffs Nos. 2 to 7 were brought on record as his heirs. Defendant No. 2 is the wife of Khalil and she is the auction purchaser in the said execution case and for that reason she has been impleaded in the case. The sale in her favour being invalid and void, she has obtained delivery of possession wrongfully in respect of the entire house and she is in possession of the property as trespasser. Hence, mesne profits of Rs. 750/- are claimed. Damages at the rate of Rs. 5/- 4 annas per month for the wrongful user of the plaintiffs share in the house are claimed. They amount to Rs. 157.50 p. Defendants Nos. 1 to 3 and 10 are liable to pay the amount. They have also, demolished the bungalow standing on the chabutera of the house in suit and for that also damages have been claimed. It is contended that the plaintiffs filed an objection under O. 21, R. 90, C.P.C. which was allowed by the Executing Court, but in appeal the judgment was reversed. Then the plaintiffs went to the Hon'ble High Court where it was held that the plaintiffs were not entitled to any relief from the Executing Court and hence this suit. 5. It is contended that the plaintiffs filed an objection under O. 21, R. 90, C.P.C. which was allowed by the Executing Court, but in appeal the judgment was reversed. Then the plaintiffs went to the Hon'ble High Court where it was held that the plaintiffs were not entitled to any relief from the Executing Court and hence this suit. 5. It may be mentioned here that a joint written statement was filed by defendants Nos. 3, 5, 6, 8 and 9. They simply took the stand that they had been wrongly impleaded in the case and had no interest in the property. It was owned by defendant No. 2 alone. They however wanted the suit against them to be dismissed with special costs. Similar was the defence of defendant No. 10 who had filed separate written statement. His contention was that whatever he had done as civil Courts Amin was done in his official capacity in compliance of the order of the Court. He was neither in collusion with defendant No. 2 nor is liable for anything and the suit against him is frivolous and vexatious and should be dismissed with special costs. 6. The main defence was put forth by defendant No. 2 who is now the appellant before the Court. Her contention is that the pedigree in the plaint is incomplete. She also took the stand that Hukum Singh had obtained the decree from Munsif, Hathras on 20-7-1930 to the knowledge of the plaintiffs. It was admitted that on the death of Sadik Husain, the defendants Nos. 3 to 9 did not get any interest, in his property. It is also admitted that there was litigation between Ashraf Husain and Tafazzul Husain. But it is contended that the property in suit was subsequently attached and sold under the decree obtained by Hukum Singh. The sale of the property was quite valid and legal and the defendant No. 2 who has purchased it in Court auction is the owner in possession. The plaintiffs claim for damages and mesne profits is refuted and it is said that the plaintiffs have no cause of action. Bar of O. 21, R. 92, C.P.C. is claimed. Bar of limitation is also claimed. It is also contended that there was no fraud in the execution of the decree and hence the plaintiffs suit was liable to. be dismissed. 7. Bar of O. 21, R. 92, C.P.C. is claimed. Bar of limitation is also claimed. It is also contended that there was no fraud in the execution of the decree and hence the plaintiffs suit was liable to. be dismissed. 7. The learned Trial Court came to the conclusion that the suit was barred by O. 21, Rr. 90 and 92, C.P.C. and it was also barred if by limitation. He also held that there was no fraud perpetrating in this case, so far as the execution and sale is concerned. He did not find the plaintiffs entitled to any relief and dismissed the suit. 8. In appeal the learned Additional District Judge has reversed these findings and has come to the conclusion that the suit was maintainable and was not barred by 0. 21, Rr. 90 and 92, C.P.C. nor by limitation and that since there was no sufficient evidence on the record on the question of fraud and he directed the case to go back by remand for retrial. 9. One legal point which has been raised in this appeal on behalf of the respondents' learned counsel was that original defendant k No. 8 Smt. Asgari Begam had migrated to Pakistan during the pendency of these proceedings and in appeal she has not been arrayed as a party nor have her heirs and representatives been brought on record, and therefore, the appeal shall stand abated in to to. 10. I have heard the learned counsel on both the sides on this aspect of the matter. There is an order of this Court dated 1-12-1981 to the effect that regarding respondent No. 26 (original defendant No. 8) the learned counsel for the appellant did not propose to take steps to bring her legal heirs and representatives on record as she is now a Pakistani National and her interest is represented by the custodian. It may further be mentioned that vide order dated 21-1-1982 the appeal against respondent No. 26 (original defendant No. 8) was held to have been dismissed. The question arises as to whether in view of these orders, the whole of the appeal shall abate or otherwise what shall be the effect of the dismissal of the appeal against respondent No. 26 (original defendant No. 8). 11. In this respect we may refer to the written statement filed on the record by defendant No. 8. The question arises as to whether in view of these orders, the whole of the appeal shall abate or otherwise what shall be the effect of the dismissal of the appeal against respondent No. 26 (original defendant No. 8). 11. In this respect we may refer to the written statement filed on the record by defendant No. 8. I have already mentioned that it was a joint written statement by defendants Nos. 3, 5, 6, 8 and 9. The original is before me and it simply says that these H' defendants were wrongly impleaded in this case, as they had no concern with the property insult, which was owned by defendant No. 2 now the appellant) alone. On that allegation, these five defendants claimed special costs under S. 35-A, C.P.C. There is on the record a mention of the fact in the judgment of the Trial Court that Smt. Asgari Begum was represented by the Custodian of the Evacuee Property. Even if there is no proof on the record of the notification declaring her to be 211 evacuee and of the vesting of the property in the custodian, it will not make any difference in this case. This defendant had no interest in the property. She claimed that she had been unnecessarily impleaded in this case. She did not claim any interest in the property. Therefore, even if against her the appeal has been dismissed or stands abated, it will have no effect upon the maintainability of the appeal, so far as the present appellant and the other respondents are concerned. This point is accordingly answered. 12. The most important point for decision in this case was and in this appeal also is, whether the Suit No. 5 of 1946 from the decision of which this appeal has been filed, was barred by the provisions of O. 21, Rr. 90 and 92 of the C.P.C. The relief claimed in the plaint is that of possession over the house and grove in suit, and the allegations are that both these were sold in execution of a decree obtained by Hukum Singh deceased defendant No. 1 against the plaintiffs and their predecessors, and the sale was in favour of Smt. Zahida Begum defendant No. 2. A copy of the decree placed on the record is Ext. A-l and it is dated 2-7-1930. A copy of the decree placed on the record is Ext. A-l and it is dated 2-7-1930. The suit number was 300 of 1930 and it was a suit of the Court of Munsif, Hathras. Ext. A-15 is the plaint of the suit. The suit was decreed. Certificate of non satisfaction of the decree was granted by the Munsif, Hathras on 23-3-1942 vide Ext. 12. On the basis of this transfer certificate execution application Ext. 16 was moved on 6-11-1942 and warrant of sale Ext. 10 was issued on 23-12-1942. The auction took place and the memos of bids are also on the record as Ext. A-20 and Ext. A-6. The sale certificate was issued on 25-3-1943, vide, Ext. 15, and ultimately on 8-7-1943 the Dakhalnama in favour of Smt. Zahida Begam was drawn out, vide, Ext. 8. 13. It appears that up to the time of confirmation of the sale, no action was taken by the respondents (plaintiffs of the suit). Only afterwards objections against sale and its confirmation were filed seeking that they be set aside, and they purported to be under O. 21, R. 90 and S. 47 of the C.P.C. The Munsif of Kannauj allowed these objections, vide, Ext. 13 on 1-2-1944. Then Zahida Begum filed an appeal before Civil Judge, who allowed it and rejected these objections, vide judgment Ext. A-4 on 18-9-1944. A review application was moved and it was also rejected on 23-12-1944, vide, Ext. A-5. Then the Execution Second Appeal No. 141 of 1945 was filed before this Court and was decided on 22-1-1946. Ext. 9 is the copy of the judgment. 14. The learned Civil Judge was of the view that O. 21, Rr. 90 and 92 of the C.P.C. were clearly applicable to this case and the suit did not he. The learned Additional District Judge took a different view and based his finding on this Courts judgment in Execution Second Appeal No. 141 of 1945 dated 22-1-46. He has quoted, torn from the context, a part of this judgment in his impugned order and has tried to interpret this judgment to mean that the suit was not barred by provisions under O. 21, Rr. He has quoted, torn from the context, a part of this judgment in his impugned order and has tried to interpret this judgment to mean that the suit was not barred by provisions under O. 21, Rr. 90,92 and 94 of the C.P.C. I will shortly show that this is simply a misinterpretation of the judgment of this Court and the finding of the learned Additional District Judge is absolutely perverse and wrong. But before that, I will like to point out some aspects of the provisions of O. 21 and its various rules, so far as they are relevant for the present case. O. 21, R. 6 prescribes for the procedure where Court desires that its own decree shall be executed by another Court. Rr. 7 and 8 lay down that the Court to which a decree is sent in pursuance of R. 6 has to proceed with the execution application is to be moved. Under R. 17(4) when an execution application is admitted, the Court has to register it and direct the execution to proceed. R. 22 lays down that in certain cases specified in this rule, notice has to issue. 15. Then we come to R. 64. It lays down how the sale has to be made and indicates the power of the Court to order the property attached to be sold. According to R. 89, where immovable property has been sold in execution of a decree, application to set aside the sale can be made on depositing in Court 5 per cent of the purchase money and for payment to the decree-holder of the proclamation amount. Under R. 90 an application to set aside the sale on the ground of irregularity or fraud can be moved by the decree-holder, the auction-purchaser or any other person entitled to share in the ratable distribution of assets, or whose interests are affected by the sale and he may take the ground of material irregularity or fraud in publishing or conducting the sale. Of-course such an applicant will have to satisfy the Court that he has sustained substantial injury on account of such irregularity or fraud. Then we come to R. 92. Of-course such an applicant will have to satisfy the Court that he has sustained substantial injury on account of such irregularity or fraud. Then we come to R. 92. It lays down that where no application is made under R. 89 or R. 90 or R. 91 or where such an application is made and disallowed, the Court has to make an order confirming the sale once this is done, the sale shall become absolute. Under R. 94 when the sale becomes absolute, the Court has to grant a certificate specifying the property sold and the name of the person who at the time of the sale is declared to be the purchaser. Under R. 95 delivery of property in occupancy of the judgment-debtor has to be made to the auction-purchaser. Then we may also look to the provisions of R 92(3), which lays down that no suit to set aside an order made under R. 92 shall be brought by any person, against whom such an order is made. 16. In the light of this legal position, it becomes absolutely clear that the scheme of O. 21 of the Civil P. C. is explicit enough to lay down that up to the stage of R. 92. it is open to the parties to proceedings in execution to seek the setting aside of the sale, but once an order confirming the sale has been made under R. 92, the order shall become absolute and cannot be set aside and in view of sub-r. (3), no suit will lie for the same purpose. Taking this to be the legal position, in its background let us analyse the purport of this Courts judgment dated 22-1-1946 passed in Execution Second Appeal No. 141 of 1945. As have already mentioned earlier, after the confirmation of the sale, proceedings under O. 21, R. 90 will not lie. That is a provision of the law which should be brought into operation before the confirmation of the sale as is provided by R. 92. After the sale has been confirmed, the provision of R. 90 cannot be exercised. This is precisely what has been laid down the judgment dated 22-1-1946, which has been misunderstood and mb interpreted by the learned Additional District Judge. After the sale has been confirmed, the provision of R. 90 cannot be exercised. This is precisely what has been laid down the judgment dated 22-1-1946, which has been misunderstood and mb interpreted by the learned Additional District Judge. This Court noted as follows : When the sale was confirmed on the 5th March, 1943, I think there is no doubt whatever that all questions which might have been raised under Rules 89,90 and 91 became concluded upon the footing of an analogy to res judicata as between the parties to the execution proceedings. There is a passage from a judgment of a very strong Full Bench of the Calcutta High Court Lakshmar Chandra v. Ram Das in which Sir George Rankin on behalf of the Court made it quite clear that that was the effect of a confirming order under Rule 92. 1 say nothing about whether there may be left means by which a person in regular suit may or may not be able to attack the entire proceedings on a ground of fraud vitiating them altogether. I do not purport to say whether that is so or whether it is not, but of this am clear that it was no longer open to the judgment-debtors to attack this sale after confirmation upon any one of the grounds specified under R. 90 or indeed, through the machinery of R. 90 at all." It was in the light of this summing up of the legal position that this Court came to the conclusion that the learned Munsif never should have entertained the application which purported to be under O. 21, R. 90, C.P.C. and since he has entertained it, it is an without jurisdiction. In this view of the legal position, which has been very correctly initiated in this judgment arid which is none different, from what have mentioned above, this Court came to the conclusion that the learned Munsifs order dated 1-2-1944 and the Civil Judges order dated 18-9-1944 should both be set aside because they were without jurisdiction. Of course, the Court was no called upon to adjudicate on the question whether there was any other remedy available to the judgment-debtors. That point was, therefore, left entirely at large and was not decided. 17. The misunderstanding of this judgment and its misinterpretation have resulted in legal flaw in the judgment of the learned Additional District Judge. Of course, the Court was no called upon to adjudicate on the question whether there was any other remedy available to the judgment-debtors. That point was, therefore, left entirely at large and was not decided. 17. The misunderstanding of this judgment and its misinterpretation have resulted in legal flaw in the judgment of the learned Additional District Judge. This Court in its order dated 22-1-1946 set aside all the proceedings from the point of confirmation of the sale. This means that all proceedings up to the confirmation of the sale were left intact and all proceedings thereafter were set aside. The learned Additional District Judge labours under certain misapprehension when he thinks that in order to bar the plaintiffs from bringing the suit, there ought to be some finality of findings recorded against them and since the High Court, vide, its order dated 22-1-1946 has not recorded any final findings, hence the matter is open and a suit can be filed. The High Court in its judgment, as mentioned above, clearly held that proceedings purporting to be under O. 21, R. 90, C.P.C. were not maintainable after the confirmation of the sale had already been made under R. 92. No question of finality of the same arose in this case. If a certain proceeding is not maintainable and is barred, according to the provisions of the law, whether the judgment-debtor has or has no remedy and whether or not there is any finality attached to any order against him, the proceedings will still not lie. This is the sum and substance of the judgment dated 22-1-1946 and the provisions of O. 21, R 92, C.P.C. The orders of the learned Munsif and the Civil Judge were set aside by this Court up to the stage of the confirmation of the sale. because the application which purported to be under O. 21, R. 90 was not maintainable and all proceedings taken on that application culminating in the judgment of the Munsif and the Civil Judge were illegal and without jurisdiction as actually it was not an application under O. 21, R. 90, C.P.C 18. Then we come to sub-r. (3) of R. 92 of 21. It clearly lays down that no suit to set aside an order made under R. 92 can be brought by any person, against whom an order under R. 92 has been made. Then we come to sub-r. (3) of R. 92 of 21. It clearly lays down that no suit to set aside an order made under R. 92 can be brought by any person, against whom an order under R. 92 has been made. The present plaintiffs are themselves parties to the execution proceedings, or their representative. Naturally the safe was confirmed in favour of Zahida Begam and became absolute. They were parties to this order under R. 92 and hence the suit to seek possession over the property and for cancellation of the sale will be barred- The finding of the Additional District Judge is, therefore, not in accordance with law and has got to be set aside and that of the learned Civil Judge to be restored. 19. The question of limitation has now no more importance. Once it has been held that the suit is not maintainable, it would be immaterial whether it was or was not within limitation. Nevertheless since the point has been raised, I may briefly advert to it also. 20. According to the appellant, Article 12 of the Limitation Act is applicable and this is the view of the learned Civil Judge also. But according to the respondents learned counsel and the Additional District Judge, the Article which is applicable to such a case is Article 95 of the Old Limitation Act, as it existed prior to amendment. Article 12 applies to cases in which the sale would be binding on the plaintiff if it is not set aside and sale in execution of a decree of a Civil Court is also included in the various types of sales to which this article applies. This is a general article and one years time is provided from the date of confirmation of sale. Article 95 is a specific article and applies to cases which have been filed to set aside a decree obtained by fraud or for other relief on the ground of fraud. To suits in which the relief is to set aside sale on the ground of fraud and for other reliefs on the ground of fraud, Article 12 has no application. Such suit is governed by Article 95, which is more specific than Article 12. To suits in which the relief is to set aside sale on the ground of fraud and for other reliefs on the ground of fraud, Article 12 has no application. Such suit is governed by Article 95, which is more specific than Article 12. In the cases of Rameshwar Narain Singh v. Mahabir Prasad, AIR 1926 Pat 401 and Madho Saran v. Manna Lal, AIR 1933 Patna 473; Bajaji Krishna v. Pirchand Budharam, (1888) ILR 13 Bom 221; Natha Singh v. Jodha Singh. (1884) ILR 6 All 406, similar view has been taken. I therefore, agree with the learned Additional District Judge that Article 95 would have applied to this case, if the suit had been in order and not barred by O. 21, R. 92(3) of the C.P.C. and three years time could have been allowed from the date when the fraud became known to the party wronged. 21. In the result, the appeal has got to be allowed and the judgment and decree passed by the Additional District Judge, Farrukhabad on 305-1978 has got to be set aside. It is accordingly done. The result will be that the judgment and order passed by Mr. Parmatma Saroup, the then Civil Judge, Farrukhabad on 1-6-1967 shall stand restored. The appellant shall get her costs from the respondents throughout.