JUDGMENT Arun Mishra, J.:- The instant writ petition has been preferred by Smt. Mohini Hardayal Singh aggrieved by the judgment delivered by DRAT, Allahabad on 1-2-2008 thereby setting aside the decision of Debts Recovery Tribunal, in the matter of sale of residential house situated at S-246, Panchsheel Park, New Delhi in execution of the decree passed against the husband of the petitioner and others. 2. Petitioner's case, in short, is that M/s Sterling Malt and Foods Pvt. Ltd. (hereinafter referred to as "the Company") manufactured malt from its factory located at 34, Industrial Area, Banmore, District-Morena (MP). Late Shri Hardayal Singh, husband of the petitioner and Shri N. S. Satyanarayan Rao were the Directors of the Company. Late Shri Hardayal Singh and his family resides at S-246, Panchsheel Park, New Delhi. Company availed financial facilities from Punjab and Sind Bank from its branches at Cannought Place, New Delhi and Jayendrganj, Gwalior. On land, factory buildings, plant and machinery situated at the factory premises charge of the bank was created and personal guarantees were submitted by the aforesaid guarantors. The property in question at Panchsheel Park, New Delhi was not mortgaged for the factory loan. 3. With respect to factory situated at Banmore, the malt manufacturing unit stopped functioning in 1983 and its accounts with Bank also became irregular. Bank had filed two civil suits, one in the Court of District Judge, Morena against the Company and its Directors Civil Suit No. 1-B/1987 for recovery of Rs. 3,84,29,670 with interest at the rate of 13.5% per annum (P.I) and a suit for approximately Rs. 21,00,000 with regard to the other loan availed of from the Bank's branch at Gwalior. 4. Hardayal Singh invited an outside investor to take over the Company along with its assets and liability by buying majority share holding therein so as to wipe off undischarged debts. Accordingly, L. K. Trust of Banglore acquired substantial control and management of the Company. L. K. Trust did not pay any consideration to existing Company, Promoter was to wipe off debt of bank, proposal for revival was submitted. Bank accepted the above proposal with few modifications. Various security documents were got executed by the trust and its trustees in favour of the bank including personal guarantees of two trustees. The bank amended the suit registered as Civil Suit No. 26-A/1999 in the District Court, Morena. Bank accepted the above proposal with few modifications. Various security documents were got executed by the trust and its trustees in favour of the bank including personal guarantees of two trustees. The bank amended the suit registered as Civil Suit No. 26-A/1999 in the District Court, Morena. The trust and trustees were impleaded as party/defendant. Compromise application (P.6) was filed in the aforesaid civil suit at Morena. The Company together with the trust and the trustees became liable to pay a sum of Rs. 1.80 crores in half yearly instalments during the period of seven years commencing from December, 1991. It was stated in the decree that property situated at Panchsheel Park has been released from the charge though it was infact not mortgaged with the Bank. Civil Suit No. 60-B/1988 pending at District Court, Gwalior was also compromised. The property at Delhi was charged against personal loan obtained at Delhi which has been paid. Bank has issued no dues certificate. 5. Trust paid to the bank an aggregate sum of Rs. 82,00,000 from 17-9-1992 to 19-9-1998, still the possession was not handed over as per compromise. Consequently, the trust stopped the instalments and bank filed execution proceedings in District Court, Morena, M. P. in the year 1995. 6. Late Shri Hardayal Singh passed away on 17-11-1994 after prolonged illness. He executed a Will in favour of Mohini Hardayal Singh. 7. In execution case at Morena at the first instance the bank had impleaded the petitioner and her son and daughter as judgment debtors along with trust and trustees being judgment debtors 5 to 10. The execution was filed after four years of passing of decree. In the execution case at Morena petitioner and her son and daughter were not served. Prayer was made before the District Court, Morena to attach the property situated at Panchsheel Park, New Delhi. Prayer to attach the said property was rejected vide Order dated 12-8-1998 due to it being outside the jurisdiction of the Executing Court. 8. Due to enactment of the Recovery of Debts Due to Banks And Financial Institutions Act, 1993 (hereinafter referred to as "DRT Act") the execution proceeding has been transferred from District Court, Morena to Debts Recovery Tribunal, Jabalpur on 15-12-1998 renumbered as TA (Exe) No. 154/1998. No notice was served upon the petitioner even after the matter was transferred to DRT. Due to enactment of the Recovery of Debts Due to Banks And Financial Institutions Act, 1993 (hereinafter referred to as "DRT Act") the execution proceeding has been transferred from District Court, Morena to Debts Recovery Tribunal, Jabalpur on 15-12-1998 renumbered as TA (Exe) No. 154/1998. No notice was served upon the petitioner even after the matter was transferred to DRT. No recovery certificate as contemplated under section 31-A of the DRT Act was ever issued. Trust had filed objection (P/12-A) in the execution. 9. The DRT, Jabalpur without notice to the petitioner vide Order dated 20th September, 2004 ordered for auction of her residential property situated at Panchsheel Park, New Delhi as also the factory Premises of the Company. Notice of settlement of sale proclamation was issued to the petitioner in Form 17, consequently she came to know of pending ex parte execution, she filed an application (P. 14) on 24-10-2004 before the DRT for recalling of ex parte Order dated 20th September, 2004. 10. During pendency of the application (P. 14) for recalling of the order, the factory premises of the Company situated at Banmore along with 14 acres of land, plot and machinery were put to auction and were sold on 13-7-2006 for a paltry consideration of Rs. 40,51,111 much below the prevailing market value. 11. Vide Order dated 10-10-2006 the Recovery Officer, DRT, Jabalpur rejected the application for recalling of order dated 20th September, 2004 on the ground that judgment debtors were fully aware of the execution proceedings and property at Panchsheel Park, New Delhi had been mortgaged with the Bank. Recovery Officer consequently directed the bank to proceed with the auction of the property for recovery of Rs. 928.85 Lacs as its reserve price based on the valuation report submitted by the bank. Appeal against order dated 10-10-2006 was filed before Presiding Officer DRT in which prayer for interim protection was made which was summarily dismissed vide Order (P. 17) dated 13-11-2006. 12. With respect to interim protections there were series of litigations before the DRT, Jabalpur, DRAT, Allahabad and this Court. As against interim order passed by DRT on 13-11-2006 appeal was preferred before DRAT, Allahabad. There was no Chairman sitting in DRAT, Allahabad as such writ petition No. 17150/06 was filed which was decided vide Order (P. 20) dated 22-11-2006. 12. With respect to interim protections there were series of litigations before the DRT, Jabalpur, DRAT, Allahabad and this Court. As against interim order passed by DRT on 13-11-2006 appeal was preferred before DRAT, Allahabad. There was no Chairman sitting in DRAT, Allahabad as such writ petition No. 17150/06 was filed which was decided vide Order (P. 20) dated 22-11-2006. This Court directed the auction to go on but the same would be subject to the orders of this Court. The fact was informed to the Recovery Officer, DRT and in newspaper public notice (P.21) was issued on 26-11-2006. Respondent No. 12 was the only bidder for a sum of Rs. 10.10 crores. Objections as to auction (P.21-A) dated 27-11-2006 were submitted. Vide Order dated 15-1-2007 this Court directed that DRAT should hear the appeal of the petitioner and till then the interim order to continue. DRAT dismissed the appeal vide Order (P. 22A) dated 27-2-2007. 13. Petitioner submits that the Recovery Officer on an application of the auction purchaser preponed the date from 16-3-2007 to 1-3-2007 and confirmed the sale without even realizing that appeal is still pending. The sale could only be confirmed after 30 days of passing of the order. Petitioner immediately filed an appeal against the order and DRT vide its order dated 16-3-2007 issued notice in the appeal. Petitioner filed a writ petition which was registered as WP 3512/07 as against the order dated 27-2-2007 passed by DRAT. The writ petition was dismissed by this Court vide Order (P.23) dated 12-3-2007. Petitioner filed a Writ Appeal No. 433/07 which was decided by a Division Bench of this Court vide Order (P.24) dated 22-3-2007. This Court directed DRAT to decide the matter afresh and the order passed by Single Bench diluted. 14. DRAT decided the matter of interim relief against the petitioner vide Order dated 19-4-2007. The said order dated 19-4-2007 was assailed before this Court. On 2-5-2007 this Court directed DRT, Jabalpur to decide the main appeal. Possession of premises was agreed to be remained with the petitioner. Aforesaid are the interim orders passed in the matter. 15. DRT, Jabalpur decided the main appeal vide Order (P.29) dated 29-5-2007. The said order dated 19-4-2007 was assailed before this Court. On 2-5-2007 this Court directed DRT, Jabalpur to decide the main appeal. Possession of premises was agreed to be remained with the petitioner. Aforesaid are the interim orders passed in the matter. 15. DRT, Jabalpur decided the main appeal vide Order (P.29) dated 29-5-2007. The DRT in the instant case has set aside the sale on the various grounds such as that petitioner, her son and daughter were not served with the notice of execution proceedings, in order dated 20-9-2004 the recovery officer has observed that petitioner, her son and daughter had raised no objection for auction of their Panchsheel Park, New Delhi property. It was a wrong fact recorded by the Recovery Officer, procedure was required to be followed step by step. The Court at Morena had rejected the prayer of decree holder bank for attachment of New Delhi property being located outside the territorial jurisdiction of District- Morena. Property being residential house of the petitioner was exempted from attachment and sale under section 60(1) (ccc) of Civil Procedure Code. New Delhi property is the main residential house of the petitioner, she is having no other accommodation elsewhere. As the mandatory initial procedure starting from issuance of notice has not been followed, the petitioner was not required to comply with the provisions of Rules 60 and 61 of IInd Schedule of Income Tax Act. Miscarriage of justice has been caused by not allowing her an opportunity of being heard. The Recovery Officer shall examine the matter of New Delhi property if protected under section 60(1)(ccc) or not by inviting objections from both sides in support of their respective companies. The sale has been set aside, refund of the amount of auction purchaser has been ordered. Petitioner, her son and daughter have been directed to disclose the other properties before the recovery officer for proceeding with execution case in order to recover the unrecovered amount of debts. 16. Aggrieved by the order passed by the DRT, Jabalpur auction purchaser and the Bank filed appeals before the DRAT, Allahabad. As DRAT had already decided the matter at interim stage against the petitioner, petitioner filed a writ petition in which this Court passed an Order (P.33) on 12-11-2007 and directed that DRAT not to be influenced by its earlier orders. The DRAT vide judgment (P.36) dated 1-2-2008 allowed the appeal. As DRAT had already decided the matter at interim stage against the petitioner, petitioner filed a writ petition in which this Court passed an Order (P.33) on 12-11-2007 and directed that DRAT not to be influenced by its earlier orders. The DRAT vide judgment (P.36) dated 1-2-2008 allowed the appeal. The DRAT has allowed the appeal vide judgment (P.36), it has held that Rule 4 of the rules in II nd Schedule of Income Tax Act is with regard to modes of recovery. It does not say about any notice. Rule 48 is for notice for attachment. Notice was served in Form No. 17 upon the petitioner. Section 29 of the DRT Act, 1993 cannot be taken to mean that all the provisions of rules of End Schedule of Income Tax Act are required to be applied in their letter and spirit. Rule 2 of End Schedule of Income Tax Act applies when the certificate has been granted by Tax Recovery Officer for recovery of arrears under said Schedule. The Tax Recovery Officer shall cause to be served upon a defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice. Smt. Mohini Hardayal Singh and two other LRs of deceased Hardayal Singh were substituted in place of deceased Hardayal Singh after the death of judgment debtor Hardayal Singh. Hence no notice was required to be issued. There is no specific provision in entire Order 22, Civil Procedure Code for issuance of notice to LRs after death of judgment debtor when execution proceedings are going on. The notice under Rule 2 cannot be equated with the notice required to be sent to the LRs for substitution. Certificate of recovery was not required to be issued section 31-A is not applicable. It was not proper for the DRT to afford an opportunity to lead evidence with respect to property situated at Panchsheel Park, New Delhi being residential property without any application. Only two grounds were raised by petitioner Smt. Mohini Hardayal in her objection. In a casual manner plea for protection with regard to house at New Delhi had also been raised. The DRT has travelled beyond the pleadings. Only two grounds were raised by petitioner Smt. Mohini Hardayal in her objection. In a casual manner plea for protection with regard to house at New Delhi had also been raised. The DRT has travelled beyond the pleadings. Under Rules 60, 61 of IInd Schedule of Income Tax Act, no deposit has been made by the petitioner, consequently her objection should not have been entertained and dealt with. Other objections could not have been entertained by the DRT. Even if interlocutory matters are disposed of finally by the DRAT or High Court, the law point, if any, discussed if are ignored from consideration the facts of the matter remains that the tribunal cannot be taken to have applied its mind, therefore, findings arrived at by DRT are liable to be set aside. 17. Aggrieved by the DRAT's judgment petitioner has filed the instant writ petition taking ground of want of notice, exemption of main residential property under section 60(1)(ccc), Civil Procedure Code, want of issuance of certificate under section 31-A of the Act, territorial jurisdiction of DRT, without attachment property could not have been sold and that DRAT has been influenced by observations made in interim orders, etc. 18. Respondent No. 1/Punjab and Sind Bank and auction purchaser, in their return, have referred to various orders passed time to time and submitted that petitioner was not entitled to benefit of exemption under section 60(1)(ccc) of Civil Procedure Code, property was subject-matter of mortgage with the Bank. The petitioner had the notice of auction of the property. Sale has become absolute, it has not been challenged by deposit of amount under Rule 60/61 of Schedule II of Income Tax Act. Petitioner did not raise question of exemption in application dated 24-10-2004. No objection as to territorial jurisdiction was raised. Section 60(1)(ccc) of Civil Procedure Code is not applicable in M. P. Recovery certificate was not required to be issued. 19. It was submitted on behalf of petitioner by Shri Ravi Shankar Prasad, learned senior counsel appearing with Shri R. Shrivastava and Shri Satish Agarwal that no notice was ever served of the execution before passing the order of sale of the house at Panchsheel Park to the petitioner on 20-9-2004. Notice was required to be issued by the District Court at Morena and also by DRT at Jabalpur. Notice was required to be issued by the District Court at Morena and also by DRT at Jabalpur. Under section 19(4) of the Act on receipt of a case on transfer Tribunal will go ahead with the case from the stage it was received by it. In the instant case, no notice was served, thus, notice was required to be issued to petitioner. Section 31 of DRT Act also requires notice to be issued before recovery certificate is issued. The proceedings leading to the auction and the auction itself has been rendered illegal and void due to violation of principles of natural justice and statutory provisions. Compliance of Order 21, Rule 22, Civil Procedure Code was mandatory. It was also submitted that prayer for attachment of the property situated at Panchsheel Park, New Delhi was rejected by the District Court at Morena on 12-8-1998, thereafter there was no fresh attachment. The said Order has attained finality. Thus, order dated 20th September, 2004 directing auction of the property without attachment was illegal. Learned senior counsel has also submitted that property exempted under section 60(1)(ccc), Civil Procedure Code from attachment and sale is also exempted as per Rule 10 of IInd schedule of Income Tax Act, 1961. The main residential house is exempted from attachment and sale, thus, the house at Panchsheel Park, New Delhi being the main residential house is exempted from attachment and sale. It was also submitted by learned senior counsel that under section 31-A of DRT Act recovery certificate was required to be issued after transfer of the case from the District Court to the DRT. No such certificate was issued by Presiding Officer, DRT, Jabalpur consequently the orders passed by Recovery Officer, DRT, Jabalpur are null and void. The recovery officer did not have the jurisdiction to deal with the matter. The property at Delhi could not have been sold by DRT, Jabalpur, it not being in territorial jurisdiction. The DRAT has been influenced by the interim orders passed whereas observations made in the interim orders could not have been taken into consideration, thus, the decision of DRAT, Allahabad is bad in law. The consequence of setting aside of Order dated 20th September, 2004 and 10-10-2004 is that sale is required to be wiped off and obliterated. The DRAT has been influenced by the interim orders passed whereas observations made in the interim orders could not have been taken into consideration, thus, the decision of DRAT, Allahabad is bad in law. The consequence of setting aside of Order dated 20th September, 2004 and 10-10-2004 is that sale is required to be wiped off and obliterated. The sale was null and void, it was not necessary to deposit amount as envisaged under Rules 60 and 61 of II nd Schedule of Income Tax Act. Learned senior counsel has also referred to various decisions. 20. Shri P. K. Agrawal and Shri R. Maindiratta, learned counsel appearing for Bank and auction purchaser have submitted that sale has become final, sale certificate has been issued, as per Rules 60 and 61 of Income Tax Rules contained in 2nd Schedule of Income Tax Act, amount was not deposited within 30 days as such sale has become absolute. The DRT has travelled beyond the scope of appeal. On 20th September, 2004 recovery officer ordered issuance of sale proclamation in form 17. Petitioner after being served with the said notice moved an application on 24-10-2004 for recall of order dated 20th September, 2004, she did not file an appeal against order dated 20th September, 2004. Thus, said order has become final. The recovery officer on 10th October, 2006 dismissed the application for recall of order dated 20th September, 2004, thus, the DRT had only the jurisdiction to deal with the order dated 10th October, 2006. It could not have taken note of subsequent developments with regard to auction of the property, sale confirmation, etc. and pass a blanket order in the terms as had been passed. There was no prayer to set aside the sale certificate in appeal before the DRT. Even if she was not served by DRT or before the District Judge, Morena she was served with the sale proclamation in form 17, she had not raised objection under section 60(1)(ccc), Civil Procedure Code. With respect to jurisdiction also no objection had been raised or with respect to reserve price. The order of recovery officer confirming sale and issuing sale certificate was final and substantive order, same was challenged by the petitioner before this Court in a writ petition. With respect to jurisdiction also no objection had been raised or with respect to reserve price. The order of recovery officer confirming sale and issuing sale certificate was final and substantive order, same was challenged by the petitioner before this Court in a writ petition. This Court has passed order in the writ petition on 12th March, 2007, both the reliefs for setting aside the order dated 27th February, 2007 passed by DRAT and setting aside order of sale confirmation dated 1-3-2007 were declined. Section 60(1)(ccc) of Civil Procedure Code is not applicable in a proceeding pending before DRT, Jabalpur, otherwise also exemption of residential house from attachment and sale is a question of fact requiring evidence and enquiry, hence, it can be taken only at appropriate stage before sale of property. Property is charged with the bank, consequently it was not exempted. Petitioner is required to aver and prove that she is the owner of entire house and she is living in entire house. Non-service of notice of the execution case was not fatal, it was merely an irregularity. Rule 2 of Schedule II of Income Tax Act requires mode of recovery of dues when a certificate has been drawn up by the Tax Recovery Officer for the recovery of arrears under the Schedule. The sale could only be set aside under Rule 61 of Schedule n of Income Tax Act. Applicant has, however, to show that she had sustained substantial injury by reason of non-service of notice. Application under Rule 61 has to be moved within 30 days and has to accompany with the deposit of amount recoverable. There is no condition that property which has not been attached cannot be sold. Learned counsel has relied upon Rule 90 of Order 21 of Civil Procedure Code to contend that mere absence or defect in attachment of property shall not be a ground for setting aside sale. The territorial jurisdiction of DRT is defined in section 19 of the DRT Act. Under section 19(23) of the DRT Act, DRT is empowered to send the copies of the certificates of recovery for execution to other tribunals where the properties are situated. This is an enabling provision. It does not divest the Tribunal of its original jurisdiction to entertain the petition and execute the decree. Objection as to territorial jurisdiction ought to be taken at the very first opportunity. This is an enabling provision. It does not divest the Tribunal of its original jurisdiction to entertain the petition and execute the decree. Objection as to territorial jurisdiction ought to be taken at the very first opportunity. No such objection was raised in the application dated 24-10-2004 filed before recovery officer. Recovery certificate was not required to be issued by Presiding Officer, DRT. Section 31-A deals with a different situation where no execution case was pending. In that event DRT is required to issue certificate of recovery. Section 31-A is inapplicable to the present case. Learned counsel has also relied upon various decisions. 21. In the instant case it is not disputed that Hardayal Singh died on 17-11-1994, he was one of the judgment debtor, execution was filed on 13-9-1995 before District Judge, Morena impleading the petitioner, her son and daughter. It is not disputed that at no point of time notice was ever served on them when the case was pending in District Court, Morena. Execution case was transferred to DRT, Jabalpur on 15-12-1998. The execution was filed after four years of passing of the compromise decree. Vide Order (P.11) dated 12-8-1998 the District Judge, Morena had rejected the prayer for attachment of the house situated at Panchsheel Park, New Delhi it being outside jurisdiction of executing Court. It is also not disputed that till passing of the order dated 20th September, 2004, no notice was issued to the petitioner or to her son and daughter. There was no occasion to issue notice before substitution as execution was filed against legal representatives of party to the suit. The order dated 20th September, 2004 was passed by Presiding Officer, DRT, Jabalpur mentioning incorrect fact that the judgment debtors 2, 3 and 4 have raised no objection for sale and auction of their property/building No. S-246, Panchsheel Park, New Delhi. Notice in Form 17 was ordered to be issued for sale of said property. Infact judgment debtors 2, 3 and 4 had no opportunity to raise objection for want of notice. 22. It was submitted on behalf of petitioner that no notice of execution was served in the District Court, Morena or by DRT, Jabalpur before sale of the property on 20th September, 2004, thus, sale is illegal and void. Infact judgment debtors 2, 3 and 4 had no opportunity to raise objection for want of notice. 22. It was submitted on behalf of petitioner that no notice of execution was served in the District Court, Morena or by DRT, Jabalpur before sale of the property on 20th September, 2004, thus, sale is illegal and void. Order 21, Rule 22, Civil Procedure Code requires notice to show cause against execution in certain cases where an application for execution is made more than two years after the date of the decree, or against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44-A. Under sub-rule (2) of Rule 22 of Order 21, Civil Procedure Code Court may dispense with notice for reasons to be recorded. Order 21, Rule 22, Civil Procedure Code is quoted below: - "22. Notice to show cause against execution in certain cases: - (1) Where an application for execution is made - (a) more than two years after the date of the decree, or (b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44-A, or (c) against the assignee or receiver in solvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than (two years) having elapsed between the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him. (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice." In the instant case the District Court at Morena has ordered issuance of notices which were never served. No order was passed as contemplated under sub-rule (2) of Rule 22 of Order 21, Civil Procedure Code by District Judge, Morena. 23. Learned senior counsel has relied upon section 31(2)(b) of DRT Act. Section provides for transfer of pending cases. Section 31(2)(b) provides the procedure for Tribunal to proceed further. It may proceed in the same manner as in the case of an application made under section 19 from the stage which was reached before such transfer or from any earlier stage as the Tribunal may deem fit. Learned senior counsel has relied upon section 19 of the DRT Act to contend that section 19(4) requires the Tribunal to issue summons requiring the defendant to show cause within 30 days of service of summons as to why the relief prayed for should not be granted. Taking analogy from section 19, counsel has submitted that it was necessary to issue notice of execution to petitioner, her son and daughter as the Tribunal has not decided to proceed from earlier stage, case was at the stage of notice. Learned senior counsel has relied upon decision of High Court of Kerala in Devassia vs. South Indian Bank Ltd, 11 (2001) BC 524 in which it has been observed that when suit or proceedings are transferred from one Court to another, notice is must to a party. Notice to party is mandatory and non-service amounts to gross miscarriage of justice. An order passed behind the back of the party is liable to be set aside. 24. Section 29 of the DRT Act makes the procedure of End Schedule of Income Tax Act applicable in the matter of recovery of dues. Notice to party is mandatory and non-service amounts to gross miscarriage of justice. An order passed behind the back of the party is liable to be set aside. 24. Section 29 of the DRT Act makes the procedure of End Schedule of Income Tax Act applicable in the matter of recovery of dues. Rule 2 of schedule IInd of Income Tax Act provides that when a certificate has been drawn up by the Tax Recovery Officer for the recovery of arrears under this Schedule, the Tax Recovery Officer shall cause to be serve upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and in default steps would be taken to realize the amount under the Schedule. Rule 2 is quoted below: - "2. Issue of notice: - When a certificate has been drawn up by the Tax Recovery Officer for the recovery of arrears under this Schedule, the Tax Recovery Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default steps would be taken to realize the amount under this Schedule. It is not disputed that no notice was issued under Rule 2. Counsel has relied upon decision in Manoj D. Kapasi and another vs. Union of India and ors., III (2005) BC 592 (DB) in which it has been observed that it is mandatory to follow the rules. The non-compliance of Rules 1 and 2 of End Schedule of Income Tax Act makes the order void. Counsel has also relied upon decision of Apex Court in Mohan Wahi vs. Commissioner, Income Tax, Varanasi and others, (2001)4 SCC 362 in which their Lordships dealt with the question of notice under section 156 of Income Tax Act which requires service of notice of demand upon the assessee before treating him a defaulter. No such notice was served, thus, very foundation for initiating the proceeding was held to be non-existent. A sale held in recovery proceedings initiated without serving the notice of demand was held to be invalid. No such notice was served, thus, very foundation for initiating the proceeding was held to be non-existent. A sale held in recovery proceedings initiated without serving the notice of demand was held to be invalid. The Apex Court has also laid down that provisions of Civil Procedure Code may not apply to the case of auction-sale held under the Had Schedule of Income Tax Act in view of Rule 56 contained therein. 25. It is clear that in the proceedings before the District Judge, Morena notice under Order 21, Rule 22, Civil Procedure Code was necessary for two reasons, firstly the execution was presented beyond four years and secondly judgment debtor Hardayal Singh had died on 17-11-1994 and bank had filed execution on 13-9-1995 against the petitioner, her son and daughter. In case a- recovery certificate is drawn by the Tax Officer. Rule 2 of the Schedule n of Income Tax Act provides that a notice of demand to be issued to the defaulter to: pay the amount specified in the certificate within fifteen days from the date of service and thereafter certificate has to be executed in accordance with the procedure prescribed in Rule 3 onwards. In the instant case certificate was not required to be drawn up as decree was being executed but Rule 2 requires defaulter to be noticed and thereafter recovery is contemplated. Mode of recovery is provided in Rule 4 by attachment and sale of the defaulter's movable property, immovable property, by arrest of the defaulter and his detention in prison, by appointing a receiver for the management of the defaulter's movable and immovable properties. Rule 6 provides on auction title to vest in the purchaser. Section 31(2)(b) of DRT Act requires the Tribunal to proceed after receiving the case on transfer in the same manner as in the case of application made under section 19 from the stage which was reached before such transfer or from earlier stage as the Tribunal may deem fit. Though section 31-A requires the tribunal to issue certificate of recovery in case of decree or order it has been inserted later on vide Act No. 1 of 2000. As the case was received by DRT earlier in 1998 and it was a pending execution case. Section 31-A cannot be said to be applicable. 26. Though section 31-A requires the tribunal to issue certificate of recovery in case of decree or order it has been inserted later on vide Act No. 1 of 2000. As the case was received by DRT earlier in 1998 and it was a pending execution case. Section 31-A cannot be said to be applicable. 26. In view of foregoing discussion, we disagree with the finding of DRAT that no notice to LRs of execution was necessary on being substituted in place of party. It was necessary to issue a notice to the defaulter as envisaged under Rule 2 of IInd Schedule of Income Tax Act and also as envisaged by Order 21, Rule 22, Civil Procedure Code by the Debts Recovery Tribunal and District Court. 27. Learned senior counsel has referred to various decisions under Order 21, Rule 22, Civil Procedure Code. In Shyam Mandal vs. Sati Nath Banerjee and others, AIR 1917 Calcutta 728 the Apex Court has held that an omission to give notice as required as per the rules is not a mere irregularity but a defect which goes to the root of the proceedings and renders it void for want of jurisdiction. Notice is requisite as the very foundation of the jurisdiction of the Court, it is claimed that the proceedings must be treated as inoperative even though a stranger may have acquired title in due course thereof. In Rajagopala Aiyar vs. Ramanujachariyar and another, AIR 1924 Madras 431 without compliance of provision of notice under Order 21, Rule 22, Civil Procedure Code sale was held to be void not merely voidable. In Kanchamalai Pathar vs. Shahaji Rajah Sahib and others, AIR 1936 Madras 205 it was held that if execution is sought against legal representative, decree holder must proceed under section 50 then notice under Order 21, Rule 22, Civil Procedure Code is obligatory. Notice must be issued to the LRs. In Leelachand Walchand Gujar and another vs. Vishnu Ganesh Lakade and others, AIR 1945 Bombay 409 the Court relying upon Kanchamalai Pathar vs. Shahaji Rajah Sahib and others (supra) held that when no notice was served on the legal representative in accordance with Order 21, Rule 22, Civil Procedure Code, the sale was void and not merely voidable. In Leelachand Walchand Gujar and another vs. Vishnu Ganesh Lakade and others, AIR 1945 Bombay 409 the Court relying upon Kanchamalai Pathar vs. Shahaji Rajah Sahib and others (supra) held that when no notice was served on the legal representative in accordance with Order 21, Rule 22, Civil Procedure Code, the sale was void and not merely voidable. In Ajab Lal Dubey and another vs. Hari Charan Tewari alias Hari Tewari and others, AIR 1945 Patna 1 similar view was taken, without notice sale was held to be inoperative against LRs. In Marotrao Shama vs. Narayan Jasrup and others, AIR 1948 Nagpur 300 the Court held that in a case of death of judgment debtor after attachment, sale without notice to legal representatives is nullity. In Ithappiri Mathai and another vs. Sree Devi Antharjanam and others, AIR 1951 Travancore-Cochin 225 the Court held that no notice was issued after death to LRs, defect is fatal. In Rm. P. Ar. Ramanathan Chettiar vs. PI. Ar. Lakshmanan Chettiar, AIR 1951 Madras 325 the Court held that in absence of notice to judgment debtors execution and sale was illegal. In The Presidency Industrial Bank Ltd. vs. The Hindustan Leather Industries Ltd. and others, AIR 1969 Bombay 84 the Court held that notice of execution to LRs is necessary. In Gauri Lal and others vs. Smt. Sujham Devi, AIR 1986 Himachal Pradesh 3 Executing Court issuing warrant for possession without show cause notice to the judgment debtors, action was held to be invalid. The execution was filed after six years. In N. Bella Gouder vs. Tahsildar of Coonoor and another, AIR 1969 Madras 143 it has been held by the Court that principle of Order 21, Rule 22, Civil Procedure Code would be applicable to Rule 2 of IInd Schedule of Income Tax Act. Notice was held to be mandatory and non-compliance thereof is fatal, the auction without notice is void. 28. Notice was held to be mandatory and non-compliance thereof is fatal, the auction without notice is void. 28. We make it clear here that we have referred to the decisions relied upon by the petitioner's counsel, however, we do not propose to decide the aforesaid question finally in writ petition that for want of notice under Rule 2 of Schedule n of Income Tax Act by DRT, the sale is void because there are several other factors which have been intervened and we propose to remit the case to the DRT, hence we are not deciding the aforesaid question finally in the instant writ petition. The question of substantial prejudice or mere irregularity is required to be decided with question of exemption under section 60(1)(ccc) of Civil Procedure Code. 29. It appears that as no notice was served upon the petitioner or her son and daughter of the execution by the District Judge, Morena under Order 21, Rule 22, Civil Procedure Code or by DRT under Rule 2 of End Schedule of Income Tax Act after the case was received on transfer and on 20th September, 2004 ex parte order of sale of property at Delhi was passed. Faced with the situation for very recall of the order dated 20-9-2004 with respect to sale of the property, application was filed on 24-10-2004 in which it was mentioned that she has not received any notice so far and was not aware of the proceedings and without appreciating this aspect order dated 20th September, 2004 for sale of the property was passed, the proceedings have been carried out behind the back of petitioner in violation of principles of natural justice. Late Hardayal Singh bequeathed his residential house No. S-246, Panchsheel Park, New Delhi to the petitioner who is exclusive owner of the property. The bank has remained in possession of property at Banmore, mortgaged property should be put to sale first. In case order dated 20th September, 2004 would have been recalled on the aforesaid application, there was no occasion to proceed with the sale of the property. Petitioner prayed for interim stay on auction and on confirmation of sale. As against rejection of the application by the recovery officer on 10-10-2006 she had filed an appeal 31/06 before DRT, Jabalpur on 19-10-2006. On 13-11-2006 DRT declined to stay the execution proceedings. Petitioner prayed for interim stay on auction and on confirmation of sale. As against rejection of the application by the recovery officer on 10-10-2006 she had filed an appeal 31/06 before DRT, Jabalpur on 19-10-2006. On 13-11-2006 DRT declined to stay the execution proceedings. She filed an appeal before DRAT, there was no Chairman as such she came to this Court. On 22-11-2006 this Court directed let auction proceedings go on but same should not be finalized without leave of the Court. On 27-11-2006 bid of the auction purchaser Ms. Sheela Gahlot was accepted by recovery officer and she was declared as a successful bidder. This Court on 15-1-2007 vide Order (P.22) passed in W.P. No. 17150/06 directed parties to appear before the DRAT and the interim order on finalization of sale was to remain applicable till application for stay was decided by DRAT. On 27-2-2007 DRAT dismissed the application of petitioner and declined to grant stay on Panchsheel Park property, New Delhi. By preponing the date 15-3-2007, recovery officer confirmed the sale on 1-3-2007 issued sale certificate to auction purchaser. On 2-3-2007 petitioner filed WP No. 3512/07 before this Court which was dismissed on 12-3-2007. On 14-3-2007 petitioner filed writ appeal. No doubt about it that Single Bench has made certain observations on merits of the case while dealing with the interlocutory matter while passing Order (P.23) dated 12-3-2007. As against which Writ Appeal No. 433/07 was filed. In the said writ appeal this Court vide Order (P.25) dated 22-3-2007 directed the Presiding Officer, DRT to decide the pending appeal which was as against Order dated 10-10-2006 passed by the recovery officer rejecting application for recall of the order dated 20th September, 2004. This Court directed the DRT to decide the appeal by 20th April, 2007. It was directed that interim order dated 15-3-2007 with respect to status quo as to possession shall remain in force till the appeal is decided by the Tribunal. Division Bench of this Court clarified that order of status quo should not be taken to be any kind of adjudication/comment on merits and the same should have no influence or persuasiveness whatsoever on the tribunal. The tribunal shall determine the issue in accordance with law. Division Bench of this Court clarified that order of status quo should not be taken to be any kind of adjudication/comment on merits and the same should have no influence or persuasiveness whatsoever on the tribunal. The tribunal shall determine the issue in accordance with law. After DRT allowed the appeal another WP 12855/07 was filed in this Court as DRAT has dealt with interlocutory orders dated 27-2-2007 and 19-4-2007 the appeal against order of DRT be heard by some other DRAT. This Court vide Order (P.33) dated 12-11-2007 observed that DRAT shall not be influenced by the factual observations made by it in the order dated 27-2-2007 and 19-4-2007. The petition was disposed of with aforesaid observations. WP No. 17133/07 was also filed in this Court aggrieved by interim order dated 23-7-2007 and 21-11-2007 passed by DRAT, Allahabad. Writ petition was dismissed vide Order (P.35). In spite of clear observations made by this Court not to be influenced from observations made in previous orders the DRAT while deciding the appeal setting aside the decision of Debts Recovery Tribunal has mentioned that DRT has not followed the discussion of law made and the observations made while passing the interlocutory orders by DRAT and by this Court. This observation has been made by the DRAT at page 41 of the order. In view of the clarification, made, by this Court, the observations made in the orders by DRAT as well as by this Court were not required to be taken into consideration. Thus, the approach of DRAT in making the aforesaid observations cannot be said to be in accordance with law. The Apex Court in Sangram Singh P. Gaekwad and others vs. Shantqdevi E, Gaekwad (died) through LRs and others, (2005)11 SCC 314 and NITCO Tiles Ltd. vs. Gujarat Ceramic Floor Tiles Mfg. Assn. and others, (2005)12 SCC 454 has opined that orders in interlocutory proceedings are not to conclude the proceedings on merits. 30. Submission made on behalf of petitioner that attachment of the property was not made. Section 51 of Civil Procedure Code provides the powers of Court to enforce execution by attachment and sale or by sale without attachment of any property. 30. Submission made on behalf of petitioner that attachment of the property was not made. Section 51 of Civil Procedure Code provides the powers of Court to enforce execution by attachment and sale or by sale without attachment of any property. The explanation to Rule 90 of Order 21, Civil Procedure Code provides that mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule. Rule 4 of Schedule n of Income Tax Act provides for mode of recovery by attachment and sale of the defaulter's movable/immovable property. Reliance has also been placed on Rule 48 of End Schedule of Income Tax Act, 1961 which provides attachment of the immovable property of the defaulter shall be made by an order prohibiting the defaulter from transferring or charging the property in any way of prohibiting all persons from taking any benefit under such transfer or charge. Rule 48 of IInd Schedule of Income Tax Act is quoted below:- "48. Attachment of the immovable property of the defaulter shall be made by an order prohibiting the defaulter from transferring or charging the property in any way and prohibiting all persons from taking any benefit under such transfer or charge." In the instant case District Judge, Morena has declined attachment of property at Panchsheel Park, New Delhi vide Order dated 12-8-1998. It is not disputed that property was not attached. Learned senior counsel appearing on behalf of petitioner has relied upon decision of Apex Court in Hope Plantations Ltd. vs. Taluk Land Board, Peermade and another, (1999)5 SCC 590 to submit that order dated 12-8-1998 passed by District Judge, Morena has attained finality as such prayer for sale of the property could not have been made again by the bank after transfer of the case to DRT. In our opinion, the purpose of the attachment is to put a fetter on the power of the judgment debtor to deal with the property and also to put him at guard as to existing dues. Due to non-attachment of the property the auction made could not be said to be vitiated, particularly in view of the fact that the property of Banmore was sold at a sum of Rs. 40 Lacs which amount was not found sufficient so as to satisfy outstanding decretal amount. Due to non-attachment of the property the auction made could not be said to be vitiated, particularly in view of the fact that the property of Banmore was sold at a sum of Rs. 40 Lacs which amount was not found sufficient so as to satisfy outstanding decretal amount. Thus, prayer for sale of other property of the judgment debtor could have been made. It is a different question whether any substantial injury has been caused due to non-issuance of notice to the petitioner which, in our opinion, has to be enquired into, particularly in view of the fact that property is claimed to be residential house. 31. The ground has been raised before the DRT that the main residential house was exempted from attachment under section 60(1)(ccc), Civil Procedure Code and Rule 10 of Schedule II of Income Tax Act, 1961 provides exemption to the property from attachment and sale under the said Rule which is exempted from attachment and sale under Civil Procedure Code. Rule 10 is quoted below:- "10. Property exempt from attachment:- (1) All such property as is by the Code of Civil Procedure, 1908 (5 of 1908) exempted from attachment and sale in execution of a decree of a Civil Court shall be exempt from attachment and sale under this Schedule. (2) The Tax Recovery Officer's decision as to what property is so entitled to exemption shall be conclusive." 32. Section 60(1)(ccc) of Civil Procedure Code as applicable in Demi provides the exemption from attachment to the residential house on certain conditions. Section 60(1)(ccc), Civil Procedure Code as applicable in Delhi provides thus:- "60. (2) The Tax Recovery Officer's decision as to what property is so entitled to exemption shall be conclusive." 32. Section 60(1)(ccc) of Civil Procedure Code as applicable in Demi provides the exemption from attachment to the residential house on certain conditions. Section 60(1)(ccc), Civil Procedure Code as applicable in Delhi provides thus:- "60. Property liable to attachment and sale in execution of decree: - (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely: - (ccc) One main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him: Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered." It is apparent from the aforesaid provision that property exempted from attachment and sale is the main residential house and other buildings attached to it with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment. However, exemption is not applicable in the case property is charged with the debts sought to be recovered. In the instant case, the property was not mortgaged with the Bank. The Presiding Officer, DRT held that this question requires investigation further whether property is protected under section 60(1)(ccc), Civil Procedure Code and has directed the question to be enquired into while deciding appeal vide Order (P.29) 33. The respondents' counsel has submitted that in order to claim exemption petitioner is required to prove that this was the main residential house. The Presiding Officer, DRT held that this question requires investigation further whether property is protected under section 60(1)(ccc), Civil Procedure Code and has directed the question to be enquired into while deciding appeal vide Order (P.29) 33. The respondents' counsel has submitted that in order to claim exemption petitioner is required to prove that this was the main residential house. He has relied upon decision of High Court of Delhi in S. C. Jain vs. Union of India and others, 23(1983) Delhi Law Times 467 in which it has been laid down that for invoking the exemption evidence and enquiry is required. The respondents' counsel has also submitted that exemption under section 60(1)(ccc), Civil Procedure Code cannot be said to be applicable with respect to proceedings pending before DRT at Jabalpur. We are not impressed by the submission as the State amendment of Punjab and Haryana is clearly applicable to Delhi. The disputed property is situated at Delhi is claimed to be main residential one. The case has to be decided as per law prevailing at Delhi where petitioner is residing and the house in question is situated. Situation of the property is material for that purpose, consequently, in our opinion, exemption could be claimed under section 60(1)(ccc) of Civil Procedure Code on satisfying the conditions enumerated under the aforesaid provision. 34. Respondents' counsel has also submitted that exemption with respect to entire house cannot be claimed till it is proved that she is owner of entire house and is living in the said entire house. As we propose to direct enquiry to be made into the exemption which has been claimed as earlier petitioner was not noticed at any point of time before issuing a notice in Form 17 for auction of the property. For recall of the order application was filed on 24-10-2006, thus, petitioner was effectively precluded from raising objections in the instant case, thus, this objection requires to be considered on merits by the Presiding Officer, DRT after enquiry to be made either by the Recovery Officer or by the Presiding Officer, Debts Recovery Tribunal itself as the Presiding Officer may consider it appropriate. 35. Submission has been raised with respect to non-issuance of recovery certificate under section 31-A of DRT Act, 1993. Section 31-A has been inserted subsequently in the year 2000. Section 31-A could not be said to be applicable. 35. Submission has been raised with respect to non-issuance of recovery certificate under section 31-A of DRT Act, 1993. Section 31-A has been inserted subsequently in the year 2000. Section 31-A could not be said to be applicable. In the instant case, decree was there of which execution was pending, consequently recovery certificate was not required to be issued by the Presiding Officer, DRT to the Recovery Officer. In a case where execution has not been initiated before insertion of provision, issuance of such a certificate was necessary. 36. Counsel for the respondents has relied upon section 19 of DRT Act where the jurisdiction is conferred either by residence or by cause of action. Clauses (a), (b) and (c) of sub-section (1) of section 19 have been relied upon. Clause (c) of sub-section (1) of section 19 provides that where a bank or a financial institution has to recover any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction "the cause of action; wholly or in part, arise". The jurisdiction is conferred under clauses (a), (b) and (c) of sub-section (1) of section 19 by the residence of defendant or place of his business or by cause of action where it arises wholly or in part. With respect to territorial jurisdiction of the Tribunal at Jabalpur, reliance has been placed on sub-section (23) of section 19 of DRT Act, 1993 which provides that in case property is situated within the local limits of the jurisdiction of two or more tribunals, it may send the copies of the certificate of recovery for execution to such other Tribunals where the property is situated. In the instant case, part of the property was at Morena and remaining property of judgment-debtor was situated at Delhi. This objection as to territorial jurisdiction would assume significance only if by place of execution failure of justice has been caused to the petitioner. In the instant case, the suit was filed before District Judge, Alorena, decree was passed on 15-10-1991, execution was transferred to DRT, Jabalpur, immovable properties were sold in execution of decree, one situated at Banmore and other at Panchsheel Park, New Delhi, thus, it could not be said that the Tribunal lacked the territorial jurisdiction. In the instant case, the suit was filed before District Judge, Alorena, decree was passed on 15-10-1991, execution was transferred to DRT, Jabalpur, immovable properties were sold in execution of decree, one situated at Banmore and other at Panchsheel Park, New Delhi, thus, it could not be said that the Tribunal lacked the territorial jurisdiction. Execution case covered property at Morena District in M. P. and also in Delhi, in case it was to be transmitted to Delhi execution at Banmore would not have been possible consequently in the instant case, we find that objection raised has no substance. 37. The Apex Court in Harshad Chiman Lal Modi vs. DLF Universal Ltd. and another, (2005)7 SCC 791 has laid down that objection as to territorial jurisdiction has to be taken at the earliest possible opportunity and in any case before settlement of issues, and cannot be allowed to be taken at a subsequent stage. The question of waiver was also dealt with by the Apex Court. In our opinion in absence of showing what prejudice has been caused due to territorial jurisdiction or failure of justice having been occasioned due to execution being held at DRT, Jabalpur, we are not inclined to accept the submission and set aside proceedings even assuming the tribunal lacked territorial jurisdiction to execute decree in relation to property situated at Delhi. 38. Now we advert to the main submission raised on behalf of respondents with respect to Rules 60 and 61 of End Schedule of Income Tax Act. Rule 60 provides for filing of application to set aside sale of immovable property on deposit. Rule 60 reads thus: - "60. 38. Now we advert to the main submission raised on behalf of respondents with respect to Rules 60 and 61 of End Schedule of Income Tax Act. Rule 60 provides for filing of application to set aside sale of immovable property on deposit. Rule 60 reads thus: - "60. (1) Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale, on his depositing - (a) the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of (one and one-fourth per cent for every month or part of a month), calculated from the date of the proclamation of sale to the date when the deposit is made; and (b) for payment to the purchaser, as penalty, a sum equal to five per cent of the purchase money, but not less than one rupee. (2) Where a person makes an application under Rule 61 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this rule." Reliance has also been placed on Rule 61 which provides that in case notice was not served upon the defaulter, so as to prove the substantial injury has been caused he has to deposit the amount only thereafter objection can be entertained. Rule 61 provides thus: - "61. Rule 61 provides thus: - "61. Where immovable property has been sold in execution of a certificate, (such Income-tax Officer as may be authorized by the Chief Commissioner or Commissioner in this behalf), the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale; Provided that - (a) no sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the non-service or irregularity; and (b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate." 39. Reliance has also been placed by the respondents' counsel on a decision of Apex Court in Dhirendra Nath Gorai and others vs. Sudhir Chandra Ghosh and others, AIR 1964 SC 1300 in which the Apex Court has laid down that where a judgment-debtor who received notice of proclamation did not attend at the drawing up of proclamation or did not object to non-compliance of section 35 of Bengal Money Lenders Act and by non-observance of the provisions of that section no substantial injury was caused to the judgment debtor, the sale is not liable to be set aside in an application under Order 21, Rule 90, Civil Procedure Code. In the instant case, objection had been raised on behalf of the petitioner for recall of the order as to want of notice and in the compromise application which was filed, it was mentioned that house situated at Panchsheel Park, New Delhi of which collateral security by way of deposit of title deeds was furnished by defendant No. 2 late Hardayal Singh shall stand released, in case its security has been furnished with respect to another loan, it would continue and personal liability of defendant No. 2 not to be effected by the release. No notice was issued of impleadment to the LRs/judgment-debtors, i.e., Smt. Mohini Hardayal, her son and daughter in execution case. No notice was issued of impleadment to the LRs/judgment-debtors, i.e., Smt. Mohini Hardayal, her son and daughter in execution case. Question is whether any substantial injury has been caused due to aforesaid want of notice. That aspect can be looked into by giving a direction to the Presiding Officer, DRT to look into the aforesaid aspect and whether with respect to property exemption can be claimed under section 60(1)(ccc), Civil Procedure Code. There are cases in which the sale has been set aside due to want of notice though recourse has not been taken to the Order 21, Rule 90, Civil Procedure Code which is akin to Rules 60 and 61 of IInd Schedule of Income Tax Act. The Apex Court in Dhirendra Nath Gorai and others vs. Sudhir Chandra Ghosh and others (supra) considering Order 21, Rule 90, Civil Procedure Code has observed that a person whose interests are affected by the sale may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice to him as required by R. 22 of the Order. As the non-compliance with the said conditions is a material irregularity in publishing or conducting the sale the Court under the first proviso to Order 21, Rule 90, Civil Procedure Code cannot set aside the sale unless it is satisfied that the applicant had sustained substantial injury by reason of such irregularity. That apart, under the second proviso to the said rule, no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person, who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up unless" objection was made by him at the time of drawing up of the proclamation in respect of the defect relied upon. Shortly stated the non-compliance with the: provisions of section 35 of the Act is a defect or an irregularity in publishing or conducting the sale. A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under Order 21, Rule 90, Civil Procedure Code. A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under Order 21, Rule 90, Civil Procedure Code. Even if he could the sale cannot be set aside unless by reason of the said defect or irregularity he had sustained substantial injury. In the facts of the instant case, we find that for want of notice due opportunity was not given to raise the objection with respect to claiming exemption under section 60(1)(ccc), Civil Procedure Code and the prayer for attachment of the house situated at Delhi was rejected by Morena Court and thereafter the case was transmitted, it would be in the interest of justice to go into the aforesaid question before resorting to setting aside the sale which has been made in favour of auction purchaser. As auction purchaser has also invested huge amount in purchase of property, sale cannot be lightly set aside until and unless substantial injury has been caused to the petitioner. Thus, her claim with respect to exemption under section 60(1)(ccc) requires consideration along with effect of want of notice to her before 20th September, 2004. 40. Respondents' counsel has also relied upon decision in Sardar Govindrao Mahadik and another vs. Devi Sahai and others, (1982)1 SCC 237 in which the Apex Court has laid down that even if a decree has been set aside auction purchaser's rights may not be affected. This aspect is required to be considered after an enquiry into the aforesaid aspect is made and question of suffering substantial injury is considered. Learned counsel has also relied upon a decision in Janak Raj vs. Gurdial Singh and another, AIR 1967 SC 608 in which law to the same effect has been laid down. He has relied upon decision in Mohan Lal vs. Hari Prasad Yadav and others, (1994)4 SCC 177 laying down that Executing Court has no jurisdiction to entertain the application after period of sixty days prescribed under Article 127 of Limitation Act. In the instant case as we are giving direction to examine the aforesaid aspect as no notice was issued, we are not extending the time. The objection was dealt with by Presiding Officer, DRT. Though it was not mentioned in objection dated 24-10-2006 but it has been agitated before DRT. 41. In the instant case as we are giving direction to examine the aforesaid aspect as no notice was issued, we are not extending the time. The objection was dealt with by Presiding Officer, DRT. Though it was not mentioned in objection dated 24-10-2006 but it has been agitated before DRT. 41. Learned Counsel for auction purchaser has relied upon decision of High Court of Karnataka in M. R. Anthony Swamy vs. Commissioner of Income Tax, Karnataka, 1981(7) Taxman 310 in which it has been opined that mere material irregularity is not enough for setting aside sale, substantial injury as a result of material irregularity has to be shown. Provisions of Rule 61 of Schedule n of Income Tax Act was held to be pari materia to Rule 90 of Order 21, Civil Procedure Code. There is no dispute with aforesaid proposition but question of substantial injury is required to be considered only after enquiry is held. Reliance has also been placed on a decision of High Court of Madras in S. Chokalingam Asari vs. N. S. Krishna Iyer and others," AIR 1964 Madras 404 in which the auction purchaser purchased the property for valuable consideration pending appeal. It was held that judgment-debtor was not entitled to restitution. In the instant case, the aforesaid question is premature to be considered, firstly to consider question of substantial injury as opportunity to raise proper objection was not afforded, we have considered it necessary to direct factual enquiry whether exemption could be claimed under section 60(1)(ccc) of Civil Procedure Code. The Presiding Officer, DRT had directed enquiry to be made after setting aside the sale. In our opinion, the sale could not have been set aside, firstly enquiry ought to have been made into the aforesaid aspect and only thereafter its effect on the validity of sale and proceedings including whether any substantial injury was caused was required to be gone into. In P. Rajendran vs. Ammaniammal and S. P. Chenniappa Gounder, Case No. CRP (PD) No. 1452 of 2006 and MP No. 2 of 2006, decided on 13-12-2006 proposition similar to the aforesaid decision has been laid down. In P. Rajendran vs. Ammaniammal and S. P. Chenniappa Gounder, Case No. CRP (PD) No. 1452 of 2006 and MP No. 2 of 2006, decided on 13-12-2006 proposition similar to the aforesaid decision has been laid down. In Kadiyala Rama Rao vs. Gutala Kahna Rao (Dead) by LRs and others, (2000)3 SCC 87 the Apex Court has laid down as to grounds which can be raised under Order 21, Rule 90, Civil Procedure Code and in case of intentional relinquishment of a known right, question of proceeding further would not arise. In the instant case, objection was raised by the petitioner for recall of the Order dated 20th September, 2004 and on rejection of the application for recall of the order, appeal was filed and in appeal this question was raised that property being residential house was exempted under section 60(1)(ccc), Civil Procedure Code. It was not mortgaged property, no notice as required under Order 21, Rule 22, Civil Procedure Code was served by the District Court which was necessary when execution was pending at District Court, Morena. No notice under Rule 2 of IInd Schedule of Income Tax Act also was issued to the petitioner to make the payment of the amount. Principle of natural justice required that petitioner should have been noticed before directing sale of the property, consequently, we find that there was no waiver in the instant case and this point of exemption was agitated by the petitioner not, for the first time, in this petition, but it was raised before the DRT. DRT had considered it appropriate to set aside the sale inter alia on the ground of want of notice, exemption of residential house etc. Counsel for auction purchaser has relied upon decision in Jaswantlal Natvarlal Thakkar vs. Sushilaben Manilal Dangarwala and others, 1991 Supp (2) SCC 691 in which the Apex Court has opined that mere illegality or irregularity in conduct of sale is not enough, substantial injury has to be shown. Reliance has also been placed on a decision of Apex Court in Balakrishnan vs. Malaiyandi Konar, 2006(2) MPLJ (SC) 501 = (2006)3 SCC 49 in which the Apex Court has laid down that when a sale is made in violation of mandatory requirement, it would be illegal and without jurisdiction. But, since question as to legality of sale attained finality, no interference was called for. But, since question as to legality of sale attained finality, no interference was called for. In the instant case, question of legality of sale is required to be adjudicated after going into certain facts and it could not be said that while dealing with the interlocutory orders, DRAT or this Court in the previous litigation have decided the case finally. We are not impressed by the submission raised by respondents' counsel that question of confirmation of sale has attained finality as this Court has dealt with the interlocutory matter and Division Bench in writ appeals has clearly diluted the observations made by DRAT and by this Court. It was clearly observed in the orders passed in aforesaid writ appeals that observations made in the interlocutory orders will not be considered as adjudication on merits. Counsel has also relied upon decision in B. Arvind Kumar vs. Govt. of India and others, (2007) 5 SCC 745 in which it has been laid down that when sale is confirmed by the Court in favour of the purchase, it becomes absolute and sale certificate is merely evidence of title acquired by the purchaser. No doubt about it, but in the instant case before adjudication on aforesaid aspect, it is required to be considered whether any substantial injury was caused, sale could be said to be void for want of notice or any other substantial injury was caused to the petitioner particularly she has also claimed the exemption with respect to residential house and in case she was entitled to claim exemption prayed for, whether it was necessary for her to deposit the amount as envisaged under Rule 60 of IInd Schedule of Income Tax Act. 42. Resultantly, we allow the writ petition, the judgment delivered by the DRAT, Allahabad and decision of Presiding Officer, DRT are hereby set aside. Case is remitted to the Presiding Officer, DRT. The claim of exemption under section 60(1)(ccc), Civil Procedure Code with respect to residential house shall be inquired into by Presiding Officer, DRT himself after recording the evidence or he may direct Recovery Officer to record the evidence and remit the finding on aforesaid aspect, let inquiry be held within a period of three months, and thereafter within a period of six weeks, the Presiding Officer, DRT to render decision in accordance with law. Till then the status quo existing as on today with respect to the property situated at S-246, Panchsheel Park, New Delhi shall be maintained by the parties. In the circumstances of the case, we leave the parties to bear their own costs as incurred of the petition. Petition allowed.