JUDGMENT (Prayer: This Civil Miscellaneous Second Appeal is filed under XXI Rule 90 of A.S.Rules read with Section 100 Code of Civil Procedure against the judgment and decretal order of the learned Subordinate Judge, Namakkal dated 01.11.2017 in C.M.A.No.2 of 2007, confirming the fair and decretal order of the learned Additional District Munsif, Namakkal dated 06.12.2006 in E.A.No.927 of 2005 in E.P.No.149 of 2003 in O.S.No.768 of 1994.) 1. The legal representatives of the Judgment Debtor are the appellants before this Court challenging the order passed by the learned Additional District Munsif, Namakkal in E.A.No.927 of 2005 in E.P.No.149 of 2003 filed by the first respondent herein to execute the decree obtained by him in O.S.No.768 of 1994 on the file of the very same Court. Facts of the case: 2. It would be necessary to give a brief history of the facts, which has ultimately culminated in the filing of the impugned application by the appellants herein under Order XX1 Rule 90 of the Code of Civil Procedure Code, hereinafter for the sake of brevity referred to as CPC. (i) The first respondent herein had filed a suit O.S.No.768 of 1994 on the file of the Additional District Munisf, Namakkal against one Dharmalingam, who is the husband of the first appellant and the father of the appellants 2 to 4 herein. The suit was filed for recovery of amounts due under a promissory note. On 05.12.1994, the said suit was decreed and the said Dharmalingam was directed to pay a sum of Rs.14,498/- together with interest at the rate of 6% on Rs.13,000/- from the date of the decree till the date of payment. Thereafter, the first respondent- Decree Holder had filed E.P.No.87 of 1999 on the file of the Additional District Munsif seeking an attachment of the properties belonging to the said Dharmalingam. Pending the execution proceedings, the said Dharmalingam had died and E.A.No.319 of 2000 was filed to bring the appellants on record as the legal representatives. The first appellant was represented by a counsel. However, appellants 2 to 4 being minors were represented by a Court Guardian, Ms.Alli. A counter was filed on behalf of the minors by the Court Guardian. However, no counter was filed by the first appellant. Therefore, an ex-parte order was passed on 06.04.2002 against the first appellant. The first appellant was represented by a counsel. However, appellants 2 to 4 being minors were represented by a Court Guardian, Ms.Alli. A counter was filed on behalf of the minors by the Court Guardian. However, no counter was filed by the first appellant. Therefore, an ex-parte order was passed on 06.04.2002 against the first appellant. Since the decree holder had not taken steps to file batta in the execution proceedings, the execution petition came to be dismissed for default on 14.08.2002. No steps are taken to restore the same. Proceedings in the subsequent execution petition under order XXI Rule 90 C.P.C. (ii) Thereafter, the present execution proceedings in E.P.No.149 2003 was filed by the first respondent for the very same reliefs as claimed in the earlier execution proceedings. It is the case of the appellant that on 31.12.2003, when the matter was first listed, the first appellant had appeared before the Court. However, the Court had not taken note of her presence and had passed the ex-parte order of attachment. Thereafter, the property was sold in auction and the second respondent was the successful bidder. Finally, he was issued with the sale certificate. However, the appellants were not aware of the said order and they had come to know about the orders just before the filing of the impugned application. In the affidavit filed in support of the application under the provisions of Order XX1 Rule 90 of C.P.C, the appellants have raised the following grounds. a) Though the first appellant was present before this Court on 31.12.2003 in response to the summons in R.E.P.No.149 of 2003, her presence was not noted and she has been set ex-parte. b) The first appellant's name has been wrongly described in the proceedings as Papayee and not Papathi and all notices have been issued in the name of Papayee and not to the first appellant, Papathi. c) No notice has been issued prior to reduction of the upset price in R.E.A.No.556 of 2004 to any of the appellants. d) The first appellant was not represented by a counsel in E.P.No.149 of 2003, but however the endorsement in the notes of proceeding would show that the Court had taken note of the vakalat filed on behalf of the first appellant in the earlier E.P.No.87 of 1999 and posted the matter for counter in R.E.A.No.556 of 2004. d) The first appellant was not represented by a counsel in E.P.No.149 of 2003, but however the endorsement in the notes of proceeding would show that the Court had taken note of the vakalat filed on behalf of the first appellant in the earlier E.P.No.87 of 1999 and posted the matter for counter in R.E.A.No.556 of 2004. On the basis of this endorsement, the first appellant has been set ex-parte on 02.02.2005 on the ground that she has not filed the counter. e) The earlier Court Guardian had entered the judicial service and thereafter, no court guardian was appointed. However, when the first appellant was set ex-parte, the matter was adjourned for filing of the counter by the appellants 2 to 4. At that point, the decree holder has taken steps in R.E.A.No.118 of 2005 to have a guardian appointed for the minors. Then, the second petition for reducing the upset price was pending in R.E.A.No.556 of 2004. The Court guardian so appointed has not taken steps to file counter in R.E.A.No.556 of 2004.( The date of filing counter was the very next hearing of the Court guardian being appointed) f) The second respondent is the brain behind the institution of the suit and the subsequent proceedings, since he and the deceased Dharmalingam were running a finance business as partners and there was a fall out between the two. Therefore, to get even, the second respondent had set up the first respondent to institute the suit and thereafter, the execution proceedings. g) The second appellant had attained majority even during the pendency of the proceedings, but however no steps were taken to declare her a major. This assumes significance since the second appellant and the daughter of the deceased Dharmalingam were studying together and were of the same age. Despite knowing the age, no steps have been taken by the respondents to declare the second appellant as a major. h) The entire Court sale auction had been manipulated in as much as only the relatives of the second respondent have participated and the very quoting of the bid amounts would clearly indicate that there has been a discussion amongst themselves before the bidding had taken place. Apart from them no other independent bidders has participated in the auction. h) The entire Court sale auction had been manipulated in as much as only the relatives of the second respondent have participated and the very quoting of the bid amounts would clearly indicate that there has been a discussion amongst themselves before the bidding had taken place. Apart from them no other independent bidders has participated in the auction. i) The sale is fraudulently and improperly conducted and therefore since the sale suffers from an irregularity it has to be set aside. For the main reasons stated above, the appellants had sought to have the attachment order raised and set aside. A serious allegation of collusion between the respondents to knock away the property has also been set out. Counter in impugned E.A: 3. The first respondent / decree holder had filed a counter inter-alia contending that there was no protest on the side of the appellants with reference to the difference in the name of the first appellant and that no steps have been taken to declare the second appellant a major. The respondents had also appointed one Tamizhselvan to represent them in E.P.No.87 of 1999. He continued to represent the first appellant in the instant proceedings as well. The first respondent would submit that the auction was held on 16.08.2005, whereas the petition under Order XX1 Rule 90 of C.P.C has been filed on 27.10.2005, which is beyond the prescribed period. Therefore, the first respondent sought for dismissal of the petition. 4. The second respondent had filed a counter, which in content was identical to the counter filed by the first respondent. Order of the Trial Court as well as the Appellate Court: 5. Before the learned Additional District Munsif, Namakkal, the first appellant had examined herself as P.W1 and the second appellant as P.W2 and Exs.P1 to P9 were marked. On the side of the respondents, three witnesses were examined and 10 exhibits were marked. 6. The trial Court, on considering the evidence and other records proceeded to dismiss the said petition. The Trial Court had held that there was nothing to show that the first appellant had appeared before the Court on 31.12.2003 and that despite her presence, the Court had proceeded to pass an ex-parte order. 6. The trial Court, on considering the evidence and other records proceeded to dismiss the said petition. The Trial Court had held that there was nothing to show that the first appellant had appeared before the Court on 31.12.2003 and that despite her presence, the Court had proceeded to pass an ex-parte order. As regards the contention of the appellants with reference to the difference in the name of the first appellant and the service of notice on the appellants, the learned Judge would observe that the appellants have not raised an objection about the non-receipt of the notice in all the applications and also with reference to the difference in the name of the first appellant. The appellants have also not brought to the notice of the Court the fact that the second appellant had become the major. With these observations, the trial Court has proceeded to dismiss the petition. The appellants had taken up the same on appeal to the Subordinate Judge, Namakkal in C.M.A.No.2 of 2007. The learned Judge has also confirmed the finding and order of the trial Court. The appellate Court held that the appellants ought to have followed the procedure as prescribed under Order XX1 Rule 89 of C.P.C. Therefore, there must have been a pre-deposit as contemplated therein. However, this procedure has not been followed by the appellants. That apart, the Court had found fault with the appellants for raising the plea regarding the sale being contrary to the procedure, minors not being represented by the guardian and the second appellant not having been declared a major, as being trivial objections. Ultimately, the appeal was dismissed. Challenging the same, the appellants are before this Court. Grounds of challenge:- 7. The main grounds of challenge to the order under appeal are as follows:- a) The proceedings right from the institution of the suit to its execution has ignored the procedural law. The decree has been passed within a period of 3 weeks of filing of the suit. The suit was filed on 11.11.1994 and the decree came to be passed on 05.12.1994, whereas the provisions of Order VIII Rule 1 of C.P.C requires a 30 day period for filing of the written statement. b) The Court guardian, who was appointed in the earlier proceedings in E.P.No.87 of 1999 on the file of the Additional District Munsif, Namakkal. The suit was filed on 11.11.1994 and the decree came to be passed on 05.12.1994, whereas the provisions of Order VIII Rule 1 of C.P.C requires a 30 day period for filing of the written statement. b) The Court guardian, who was appointed in the earlier proceedings in E.P.No.87 of 1999 on the file of the Additional District Munsif, Namakkal. had been drawn to the judicial service and thereafter, the minors were not represented by a guardian in the subsequent execution petition in E.P.No.149 of 2003. The mandatory notice under Order XX1 Rule 22 had not been issued to the appellants in E.P.No.149 of 2003. c) Notice has been issued only to the first appellant and not to the minors, who are the appellants 2 to 4 herein in the proceedings under Order XXI Rule 66(2), CPC. d) No notice has been issued to the minors when the upset price has been reduced. It was only after the second application in R.E.A.No.556 of 2004 for further reducing the upset price had been filed that the first respondent herein had taken steps to appoint the Court guardian for the minors/appellants 2 to 4 herein. e) The Court Guardian was appointed on 03.03.2005 and on 18.03.2005, R.E.A.No.556 of 2004 was allowed stating that the Court guardian has not filed the counter. On 18.03.2005, sale proclamation was issued and once again, there was no notice to the judgment debtors. Therefore, the proceedings are nullity, as the statutory requirements have not been followed. Further, the proceedings are barred by limitation. f) Although the attachment had been effected only with reference to an un-divided half share, ultimately the auction sale has been held in respect of the entire property, which is invalid. Submissions: 8. The learned counsel for the appellants had relied upon the judgment reported in 1924 ILR (47) 288 [Ramachandra Ayyar Vs. Ramanujachariar and Another] in support of his contention that where a notice contemplated under Order XXI Rule 22 of C.P.C has not been issued, then the sale which is held in execution is a nullity. The sale is not voidable but is void as against the person to whom such notice has to be issued. In the instant case, notice has not been taken, despite the fact that the earlier petition in E.P.No.87 of 1999 had been dismissed for default and the order was in favour of the judgment debtors. 9. The sale is not voidable but is void as against the person to whom such notice has to be issued. In the instant case, notice has not been taken, despite the fact that the earlier petition in E.P.No.87 of 1999 had been dismissed for default and the order was in favour of the judgment debtors. 9. The learned counsel for the appellants relied upon another judgment of the Hon'ble Supreme Court reported in (1994) 1 SCC 131 [Desh Bandhu Gupta Vs. N.L.Anand and Rajinder Singh] in support of his argument regarding the mandatory notice that is to be issued under order XXI Rule 66(2) C.P.C. In the said judgment, it has been held that the service of notice on Judgment Debtor is mandatory under Order XX1 Rule 66 (2) of C.P.C and non-compliance would render the sale invalid. 10. Per contra, Mr.S.Senthil, learned counsel appearing for the second respondent-auction purchaser would submit that the proceedings now initiated is an attempt on the part of the judgment debtor to protract the proceedings and deny the auction purchaser the fruits of his purchase and the right to enjoy the property that he has purchased in auction. He would further contend that the application under the provisions of Order XX1 Rule 90 of C.P.C has to be filed within 60 days from the date of sale. In the instant case, sale had taken place on 08.06.2005, whereas the application was filed to set aside the sale on 27.10.2005 in R.E.A.No.927 of 2005. This application should have been filed on or before 07.08.2005 as per the provisions of Article 127 of the Limitation Act. The appellants have participated in the execution proceedings, which is clearly reflected from a perusal of Ex.C1 to C10 and they have not proved that any substantial injury has been caused to them and that there was any material irregularity or fraud in the conduct of the auction, the proclamation of sale, fixation of price and re-fixation were all done only after due notice to the parties. The second respondent, who is the third party has bonafidely participated in the court auction and invested his hard earned money for the purchase of 81 cents of land by paying a sum of Rs.25,700/- and stamp duty of Rs.5,630/-. The delivery of possession was ordered on 28.09.2018 and the delivery was also effected on 29.10.2018. The second respondent, who is the third party has bonafidely participated in the court auction and invested his hard earned money for the purchase of 81 cents of land by paying a sum of Rs.25,700/- and stamp duty of Rs.5,630/-. The delivery of possession was ordered on 28.09.2018 and the delivery was also effected on 29.10.2018. He would submit that the execution Court cannot go behind the decree and entertain aspects that the decree was incorrect in law. If the appellants were aggrieved by the said order, they ought to have taken steps to file an appeal and not use the executing Court to redress their grievance. There is no substantial question of law raised on the side of the appellants. 11. The learned counsel for the second respondent has placed his reliance on the judgment of this Court reported in (1973) 86 LW 734 [Sanyasi Chettiar Vs Harigopalasami Udayar]. Chronology: 12. Before proceeding to consider the arguments and the documents, it would be useful to set out the chronology of dates and events in the instant case. Date Events 5.11.1994 The suit O.S.No.768 of 1994 filed by the first respondent for recovery of money before the Additional District Munsif, Namakkal was decreed in and by which the first respondent is entitled to a sum of Rs.14,488/- with interest on Rs.13,000/- @ 9% per annum from the date of the plaint till the date of the Date Events decree and thereafter @ 6% per annum. 07.07.1989 E.P.No.87 of 1999 filed by the first respondent for attaching the properties belonging to the judgment debtor (at the time of filing of the petition, the judgment debtor was alive).The schedule to the petition would clearly state that it is the undivided 1/2 share in Items 1 to 7 that is to be brought to sale. 07.07.1999 Notice under Order XXI Rule 22 is directed to be issued to the Judgment Debtor, returnable by 26.07.1999. 26.07.1999 The Court notice has been served, but the private notice has not been received. The Judgment Debtor was called absent and set ex-parte and attachment by 23.04.2011. 13.08.1999 Properties were attached. 23.08.1999 Attachment of the properties entered in the register 19.06.2000 A memo filed informing the death of the Judgment Debtor and the death is recorded. The matter is adjourned to 20.07.2000. Thereafter, the matter was continuously adjourned. The Judgment Debtor was called absent and set ex-parte and attachment by 23.04.2011. 13.08.1999 Properties were attached. 23.08.1999 Attachment of the properties entered in the register 19.06.2000 A memo filed informing the death of the Judgment Debtor and the death is recorded. The matter is adjourned to 20.07.2000. Thereafter, the matter was continuously adjourned. 02.08.2000 The petition for bringing on record the LRs of the Judgment Debtor was filed in E.A.No.319 of 2000 10.09.2001 E.A.No.319 of 2000 was allowed and steps were directed to amend the execution proceedings. Thereafter, the matter was being adjourned for filing the amended copy and to carry out the amendment. 31.10.2001 The Court had directed notice to the respondents under Order 21 Rule 22 C.P.C 01.07.2002 Attachment was ordered by 03.08.2002. 05.08.2002 Since 03.08.2002 was a holiday, the matter was taken up this day and as the learned Additional District Munsif was on casual leave, the matter was re-posted to 14.08.2002. 14.08.2002 The petitioner was called absent and since batta was not taken, the execution petition was dismissed for default. 06.10.2003 E.P.No.149 of 2003 was filed to sell the immovable properties that have been attached. No notice under Order 21 Rule 22 issued. 17.10.2003 Notice under Order 21 Rule 66 enclosing petition copy through Court and post on the respondents, returnable by 17.11.2003 is ordered. 17.11.2003 Fresh notice issued, returnable by 24.12.2003. 24.12.2003 Court notice to R2 (the first appellant herein) has been returned as out of station and the private notice was served. The matter was adjourned to 31.12.2003 31.12.2003 “R.N” (R2) Served. Respondent called absent set ex-parte. Notice has not been served on the minors respondents 3 to 5 in the execution petition and that apart, notice under Rule 22 has also not been served on any of the respondents. Post on 19.01.2004 for settlement of the terms of sale. 19.01.2004 Terms of sale settled. Upset price is fixed (no notice to minors in E.P). Proclamation is only with reference to 1 and 2 items of properties. Sale was directed on 24.03.2004 and the matter was adjourned for further hearing to 29.03.2004. 29.03.2004 No bidders. Property not sold 08.04.2004 Upset price reduced in R.E.A.No.177 of 2004. Petition to reduce the upset price in R.E.A.No.177 of 2004. No notice is directed to the respondents.(Appellants herein) 20.07.2004 R.E.A.No.177 of 2004 is closed. Sale was directed on 24.03.2004 and the matter was adjourned for further hearing to 29.03.2004. 29.03.2004 No bidders. Property not sold 08.04.2004 Upset price reduced in R.E.A.No.177 of 2004. Petition to reduce the upset price in R.E.A.No.177 of 2004. No notice is directed to the respondents.(Appellants herein) 20.07.2004 R.E.A.No.177 of 2004 is closed. Upset price is reduced to Rs.20,000/- for I item and II Item is reduced to Rs.30,000/-. Proclamation and sale was directed on 29.02.2004 and further hearing was posted on 27.09.2004. 27.09.2004 No bidders 01.10.2004 Petition to reduce the upset price filed in R.E.A.No.556 of 2004. 05.10.2004 Notice ordered to respondents in E.A.No.556 of 2004; notice taken out only for service on the second respondent in the E.P.(the first appellant herein) 14.12.2004 Court notice affixed for 2nd respondent in E.A.No.556 of 2004; private notice served on her; it is ordered that Mr.R.Tamilselvan, Advocate is already on record for the 2nd respondent in the E.P; counter of 2nd respondent by 27.12.2004 (No vakalat filed by Tamilselvan) 02.02.2005 The 2nd respondent in E.A. set ex-parte in E.A.No.556 of 2004 as counter not filed 15.02.2005 E.A.No.118 of 2005 filed to appoint a Court Guardian for respondents 3 to 5 in the E.P. 03.03.2005 Ms.S.Sumathi, Advocate appointed as Court Guardian for minor respondents 3 to 5 in the E.P 18.03.2005 Items 1 and 2 ordered to be proclaimed and sold; terms settled with notice under Order XXI-Rule 66 13.06.2005 The 2nd respondent herein is the successful bidder of items 1 and 2 16.08.2005 Sale confirmed 27.10.2005 Present E.A.No.927 of 2005 in E.P.No.149 of 2003 filed by the appellants herein under Order XXI – Rule 90 of C.P.C 21.11.2005 Sale Certificate issued to the second respondent. 13. As set out in paragraph No.7 supra, the main ground on which the auction sale is sought to be set aside is on the ground that mandatory procedures set out with reference to execution proceedings under Order XXI C.P.C has been given a total go-by, the minor petitioners have not been given a hearing and opportunity to present their stand. The Appellants have also alleged fraud. The objection to auction sale conducted revolves around the following provisions of law, which are herein below extracted: Order XX1 Rule 22 of Code of Civil Proceedure: 22. Notice to show cause against execution in certain cases. The Appellants have also alleged fraud. The objection to auction sale conducted revolves around the following provisions of law, which are herein below extracted: Order XX1 Rule 22 of Code of Civil Proceedure: 22. Notice to show cause against execution in certain cases. (1) Where an application for execution is made (a) more than 1 [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 44A], [or] (c) against the assignee or receiver in insolvency, 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 date of 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 judgmentdebtor 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. Order XX1 Rule 66(2) of Code of Civil Proceedure: 66. Proclamation of sales by public auction. (1) ... (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible. Order XX1 Rule 66(2) of Code of Civil Proceedure: 66. Proclamation of sales by public auction. (1) ... (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible. (a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part; (b) the revenue assessed upon the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any encumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property: Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs: Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate if any, given, by either or both of the parties. ]Rule 2 has been amended by the High Court of Madras] Order XX1 Rule 90 of Code of Civil Proceedure: 90. Application to set aside sale on ground of irregularity or fraud. (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or 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. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. 14. A reading of order XX1 Rule 22 indicates the situation where a notice has to be issued to show cause against execution. (a) Where an application is made 2 years after the decree, or (b) Where an application is made against the legal representatives of a party to the decree or made for execution of a decree made under Section 44A or (c) Where an application for execution is made against an assignee or receiver in insolvency, where the party to the decree has been declared as an insolvent, in these cases, the Court executing the decree is bound to issue notice against the aforesaid persons. However, the proviso to the above Rule would set out the circumstances in which this mandatory provision is relaxed regarding service of notice in respect of an application for execution made after 2 years have lapsed between the date of the decree and the application for execution. (a) Where the application is made within two years from the date of the last order against the party against whom the execution is filed. (b) Where the application is made against the legal representative of a Judgment Debtor against whom the execution had been ordered in an earlier application. Therefore, the provisions of Rule 22 (1) provides for the circumstances in which notice has to be issued and the proviso talks about the circumstances where such notice is not required. 15. The appellants have raised a specific plea that the earlier proceedings in E.P.No.87 of 1999 had been dismissed for default on 14.08.2002, which is an order in favour of the Judgment Debtor. Therefore, when E.P.No.149 of 2003 was filed the mandatory notice under the provisions of Rule 22 (1) had to be served. No such notice, admittedly has been issued to the appellants. Therefore, when E.P.No.149 of 2003 was filed the mandatory notice under the provisions of Rule 22 (1) had to be served. No such notice, admittedly has been issued to the appellants. In fact, E.P.No.149 of 2009 was filed on 06.10.2003 and on 17.10.2003, the Court had only ordered notice under Order XXI Rule 66, which Rule relates to the proclamation of sale by public auction. The notes sheet does not show any order directing notice as contemplated under Order XXI Rule 22 C.P.C. That apart, it is seen that the first appellant had been set ex-parte in E.P.No.149 of 2003 on 31.12.2003. The chronology of dates and events would show that on 14.12.2003, when the second application for reducing the upset price, namely, E.A.No.556 of 2004 was filed, the notice in that application had been served on the first appellant herein. The Court below suo-motu has ordered that since Tamilselvan, learned counsel was already on record as counsel, the first appellant was directed to file a counter by 27.12.2004 in the above application. In this regard, a perusal of the records would clearly show that the said Tamilselvan had not entered appearance on behalf of the first appellant in E.P.No.149 of 2003. In fact, on 31.12.2003, she had already been set ex-parte. The said Tamizhselvan had appeared only in the earlier execution proceedings, namely, E.P.No.87 of 1999. The proceedings in E.P.No.149 of 2003 from 17.10.2003 till 02.02.2005 clearly shows that no notice has been served on the minors and notice has been taken only to the first appellant. The first respondent has taken steps for appointing a Court guardian for the appellants 2 to 4 only on 15.02.2005 and on 03.03.2005, the Court guardian was appointed. Immediately, the matter was directed to be listed on 18.03.2005 for filing their counter. The Court has not given any time to the Court guardian to even get instructions from the minors /persons in-charge of them. The very next hearing after the guardian was appointed, the Court has proceeded to reduce the upset price stating that the Court guardian has not filed their Counter. The learned District Munsif has totally failed to appreciate the fact that no notice has been issued to the minors in the execution proceedings. After the appointment of the Court guardian, the upset price has been reduced on the ground that no counter has been filed. The learned District Munsif has totally failed to appreciate the fact that no notice has been issued to the minors in the execution proceedings. After the appointment of the Court guardian, the upset price has been reduced on the ground that no counter has been filed. This issue has been settled as early as in the year 1924 by the Hon'ble Full Bench of this Court in the judgment reported in 1924 ILR (47) 288 [Ramachandra Ayyar Vs. Ramanujachariar and Another], where the question involved was whether the second appeal would fail if no notice of the execution petition was given to the third respondent. One of the questions that was placed for consideration was whether the non-issue of notice under Order XXI Rule 22 would render the proceedings void. The Bench had observed as follows:- “22.....In the case before us no notice has been given of execution proceedings to the infant petitioners although a year had elapsed since the decree, but I can see no difference in principle between the position of legal representatives of a deceased judgment-debtor, or the Official Assignee of the judgment-debtor's estate, and that of a party to the suit, who has not himself been served with notice of an application for execution, more than a year after the decree and is ignorant thereof. The provision for notice in the two cases, of legal representatives, and of parties when more than one year has elapsed, is contained in the same rule, Order XXI, Rule 22, which is in the same terms as Section 248 of the Civil Procedure Code of 1882, and I do not think that it is possible to hold that in one case failure to give notice is a mere irregularity while in the other it results in the Court having no jurisdiction to sell at all. In Shyam Mandal v. Satinath Banerjee (1917) I.L.R. 44 Calc. 954 Mookerjee and Cuming, JJ., held that a proper notice under Order XXI, Rule 22, after the lapse of one year from the decree, was the very foundation of the jurisdiction itself, and that failure to give it rendered a sale inoperative even as against a stranger.” 16. In Shyam Mandal v. Satinath Banerjee (1917) I.L.R. 44 Calc. 954 Mookerjee and Cuming, JJ., held that a proper notice under Order XXI, Rule 22, after the lapse of one year from the decree, was the very foundation of the jurisdiction itself, and that failure to give it rendered a sale inoperative even as against a stranger.” 16. In the judgment of this Court reported in (1986) 99 LW 938 [Muthammal vs Kaveriammal And Others], the issue was whether notice to the Judgment Debtor was mandatory in a case where the earlier execution petition had been dismissed and a fresh execution petition was filed on the very same day on which the earlier execution proceedings was dismissed. The learned Judges discussed the proviso to Order XXI Rule 22 and held as follows:- “3.....The effect of the proviso, therefore, is that even though execution proceedings are taken beyond the period of two years from the date of the decree, if the execution petition is filed within two years from the date of the last order against the judgment debtor, then no notice as required by O. 21, R. 22, C.P. Code need to be served. In other words, only if the last order is against the judgmentdebtor, then only liberty is given to apply for execution within a period of two years from that date and a fresh notice is not necessary in view of the proviso to O. 21, R. 22, C.P.C....” In the instant case, E.P.No.87 of 1999 which was the earlier execution proceedings, had ended in favour of the Judgment Debtor inasmuch as the execution petition was dismissed for default. Therefore, the case would not come within the contours of the proviso to Rule 22 and the Decree Holder is bound to issue notice to the respondents. 17. The next contention which has been put forward by the appellants is that not only was notice not served in the execution proceedings but the notice has also not been served on the minors before the property was brought to sale. The chronology of dates and events narrated supra would clearly show that the minors have not been served either in the execution proceedings or in E.A.No.177 of 2014 and E.A.No.556 of 2004. In fact by order dated 17.10.2003 the Court had directed notice to all the respondents, namely, the appellants herein. The chronology of dates and events narrated supra would clearly show that the minors have not been served either in the execution proceedings or in E.A.No.177 of 2014 and E.A.No.556 of 2004. In fact by order dated 17.10.2003 the Court had directed notice to all the respondents, namely, the appellants herein. However, the Decree Holder has chosen to serve only the second respondent, namely, the first appellant herein. No steps were taken to serve the minors nor steps taken to appoint a guardian. 18. In the judgment reported in (1994) 1 SCC 131 [Desh Bandhu Gupta vs N.L.Anand & Rajinder Singh], the Hon'ble Supreme Court was considering the issue of notice under the provisions of Order XXI Rule 66(2) and 54(1-A) of C.P.C, the Bench had observed as follows: “10. Above discussion indicates a discernible rule that service of notice on the judgment-debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21 Rule 66(2), unless proviso is applied (if not already issued under Order 21 Rule 22), and service is mandatory. It is made manifest by Order 21 Rule 54(1-A) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation the judgment-debtor shall be served with a notice before settling the terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof 3 AIR 1924 Mad 431 : ILR 47 Mad 288 :46 MLJ 104 void unless the judgmentdebtor appears without notice and thereby waives the service of notice.” 19. In the judgment reported in (2008) 13 SCC 113 [M/s.Mahakal Automobiles & Anr vs Kishan Swaroop Sharma], the Bench had set out the mandatory stages that has to be followed before the property is sold in execution and had observed in paragraph 11 of the said judgment as follows:- “11. The records do not reveal that the appellantjudgment debtor was served with a notice as required under Order 21 Rule 54(1)(A) of the Code in the appendix B Forms 23, 24 and 29. The records do not reveal that the appellantjudgment debtor was served with a notice as required under Order 21 Rule 54(1)(A) of the Code in the appendix B Forms 23, 24 and 29. It is to be noted that the records reveal that the address of the appellant as contained in the sale deed was different from the address at which the process server purportedly affixed the notice on the door and in open court and at the chorah only. It has also to be noted that under Order 21 Rule 66(2) the service of the notice has to be personally affected on the judgment debtor. That also does not appear to have been done. Interestingly, the valuation of the property as required to be done under the proviso to sub-rule (2) of Rule 66 of Order 21 of the Code has not been done. The same appears to have been valued on the spot at Rs.9,00,000/- and it was not done by the Court. There are admittedly other non-compliance with certain requirements. We do not think it necessary to deal with those aspects in detail in view of the order proposed to be passed. From the records it is revealed that Rs.14,38,893/- and Rs.4,46,926/- have been deposited by the appellant purportedly for satisfaction of the Execution Court Ujjain and Indore respectively. The appellant shall further deposit a sum of Rs.15,00,000/- within 4 months from today. The respondent No.1 shall be entitled to withdraw the amount deposited in the bank with accrued interest. The appellant shall be responsible for payment of the property tax of the property from the date of execution of sale deed i.e. 5.12.1986 till date and the same shall be paid deposited with the concerned authority within the aforesaid period of four months. On payment of the amounts, the title to the property described in the registered sale deed will vest free of all encumbrances on the appellant.” Thereafter, the Bench had relied upon the judgment reported in Desh Bandhu Gupta Case cited supra and the judgment reported in (1987) 4 SCC 717 [Shalimar Cineme Vs.Bhasin Film Corpn.] to reiterate the contention that notice under Order XXI Rule 66(2) is mandatory. 20. The third ground on which the auction sale is challenged is on the ground of fraud and collusion. 20. The third ground on which the auction sale is challenged is on the ground of fraud and collusion. The appellants would submit that although an order of attachment had been effected with reference to an undivided ½ share in the properties described as items 1 to 7, the sale has been conducted and the sale certificate has been issued in respect of the entire extent of items 1 and 2 of the properties. The schedule in E.P.No.87 of 1999 on the file of the District Munsif, Namakkal, in which, the properties were attached clearly describes items 1 to 7 and ultimately, states as follows: 21. A perusal of Ex.C8-Sale Proclamation dated 08.06.2005 would show that items 1 and 2 were to be brought to sale. Interestingly, the service of proclamation notice on the first appellant has been witnessed by the second respondent, P.K. Velusamy. At that point of time the property was only being brought to sale. Even in the second sale proclamation Ex.C9 states as follows:- 22. Ex.C10-Sale Proclamation, however does not contain reference to undivided share. Though ExC8-Sale Proclamation clearly states that it is the undivided ½ share that has to be brought to sale, the sale certificate that has been issued to the second respondent would read as follows: Therefore, from a perusal of the above details, it is clear that though the attachment was with reference to ½ share and the sale proclamation was also with reference to ½ share, the second respondent has proceeded to purchase the entire property and the sale certificate has also been issued with reference to the entirety. 23. The next ground of fraud is that the second respondentauction purchaser has played a very significant role throughout and that 1st and 2nd respondents have colluded to bring down the price of all the properties in order to knock away the same at a very low price. There appears to be some force in the above contention. A perusal of Ex.C8, which is the Sale Proclamation for the sale to be held on 08.06.2000 and which has been served on the first appellant would show that it has been signed by the second respondent herein, P.K.Velusamy as a witness. There appears to be some force in the above contention. A perusal of Ex.C8, which is the Sale Proclamation for the sale to be held on 08.06.2000 and which has been served on the first appellant would show that it has been signed by the second respondent herein, P.K.Velusamy as a witness. Therefore, the contention of the appellants that the respondents have joined hands is clearly evident from a perusal of the above document, because the auction, in which the second respondent had emerged as a successful bidder took place on 08.06.2005 and was confirmed on 16.08.2005. 24. The other procedural irregularities pleaded is that all the notices the first appellant has been described as Papayee and not as Papathi. This irregularity does not swing in favour of the appellants, since the first appellant had received notice and had not made any protest in the same. 25. Mr. S.Senthil, learned counsel for the second respondent would submit that the order of sale could be modified as one for the undivided share and in support of this argument he would rely upon the judgment reported in (1973) 86 LW 734 [Sanyasi Chettiar Vs. Harigopalasami Udayar], which was a case where there was a mistake in the survey number in Sale Proclamation. This Court had observed that an accidental slip which has occurred in the sale certificate be corrected in exercise of the inherent jurisdiction of the Court to meet the ends of justice. He would rely upon the judgment reported in 2008 (6) CTC 862 [Saravana Theatre, represented by its Partner Vs. T.Ramalingam and 7 others], where a property had not been described by survey numbers but as Saravana Theatre. The Court had observed in paragraph 25 as follows: “25. In this case, it is clear that the court auction sale was confirmed, sale certificate was also issued in favour of the first respondent / auction-purchaser, with regard to the property, Saravana Theater, Gudiyatham, which reached its finality. It is not the case of the revision petitioner and other judgment-debtors that there is any other property, left out in S.No.70/2, apart from Saravana Theater at Gudiyatham owned by them and brought for court auction sale. It is not the case of the revision petitioner and other judgment-debtors that there is any other property, left out in S.No.70/2, apart from Saravana Theater at Gudiyatham owned by them and brought for court auction sale. In such circumstances, it is not open to the petitioners to challenge the impugned order passed by the court below, saying that the auction-purchaser could have filed three separate applications for the amendment of the survey number and extent and to approach the trial court, since mere technicalities cannot prevail over justice, in the absence of any legal grievance, since there is no subsisting rights available to the judgment-debtors, including the petitioners herein in the property attached and sold in court auction. This court is of the considered view that the objections raised by the petitioners is without any subsisting right and as such is not sustainable in law.” 26. The learned counsel for the second respondent has also placed his reliance on the judgment of the Hon'ble Supreme Court reported in (1999) 9 SCC 276 [Ram Maurya Vs.Kailash Nath and Others]. 27. The contention of the learned counsel for the second respondent cannot be countenanced for the reason that very execution petition is tainted inasmuch as the mandatory notices under Order XXI Rule 22 and Rule 66 of C.P.C have not been served on the respondents and further the allegations of fraud have been pleaded and substantiated. In the instant execution petition, which is the subsequent execution proceedings, no notice whatsoever was issued to the minors both in the execution petition as well as in the petition for bringing the properties to sale and for reducing the upset price. Since the mandatory provisions has been ignored and flouted, the sale conducted pursuant to these provisions, has to definitely be set aside. The anomaly is not simplicitor a clerical error or mistake. Further since mandatory procedures have been flouted the second respondent cannot take succour by taking the defense of limitation. 28. The learned counsel for the second respondent has pleaded that there is no plea of material irregularity in the conduct of the sale raised by the appellants. This contention has to necessarily be rejected, since the appellants have set out the clear details in the petition under Order XXI Rule 90 of C.P.C regarding the irregularities that have arisen in the conduct of the sale. 29. This contention has to necessarily be rejected, since the appellants have set out the clear details in the petition under Order XXI Rule 90 of C.P.C regarding the irregularities that have arisen in the conduct of the sale. 29. For the aforesaid reasons, the Civil Miscellaneous Second Appeal is allowed. The sale conducted on 08.06.2005 is therefore set aside. There shall be no order as to costs.