JUDGMENT : Sathish Ninan, J. The application filed seeking to set aside the court sale held on 18.08.1999 and for re-delivery was dismissed by the execution court. The applicant is in appeal. 2. The application scheduled property is the eastern 16 cents out of a larger extent of 32 cents in Sy. No.2746 of Vanchiyoor village. The 32 cents, described as having an extent of 34 cents, belonged to the defendants in OS 288/1974 of the Additional Sub Court, Kottayam. The suit was one for money. Pending the suit, they sold the property to a third party on 06.03.1986. The assignee is arrayed as respondent No.31 in the application. The assignee conveyed the property in favour of the applicant under Sale Deeds 1019/1998, 1022/1998 and 1024/1998. From out of the total extent of 32 cents, the western 16 cents was purchased by one Janardhanan Pillai. Based on the sale, the applicant effected mutation and was in absolute possession and enjoyment of the property. 3. While so, on 14.07.2004 the applicant was illegally dispossessed in execution of the decree in O.S. 288/1974. The dispossession was on the strength of a sale held by the Court on 18.08.1999 in respect of the entire 32 cents of property. The decree holder was the auction purchaser. It is thereupon that the present application was filed. 4. The suit, O.S. 288/1974, was decreed on 23.03.1978, on confession. Since the immovable properties sought to be proceeded against in execution were situated at Thiruvananthapuram, the decree holder got the decree transmitted to Thiruvananthapuram. Thereafter the decree holder filed E.P. 28/1982 before the Additional Sub Court, Thiruvananthapuram seeking execution of the decree by sale of the immovable properties. 5. In execution of the decree, on 18.08.1999, the 34 cents of property described supra was auctioned and was bid by the decree holder. The sale was confirmed on 15.12.1999. The decree holder took delivery of the property on 14.07.2004. 6. Challenging the sale and seeking re-delivery, the appellant herein filed EA 937/2004. The purchaser of the western 16 cents from out of 32 cents viz., Janardhanan Pillai referred to earlier, filed EA 946/2004 seeking re-delivery of the said property. Both the petitions were dismissed by the execution court. The present Execution First Appeal is filed challenging the dismissal of EA 937/2004. Challenging the dismissal of EA 946/2004, Janardhanan Pillai had filed Execution First Appeal No.20/2005. Both the petitions were dismissed by the execution court. The present Execution First Appeal is filed challenging the dismissal of EA 937/2004. Challenging the dismissal of EA 946/2004, Janardhanan Pillai had filed Execution First Appeal No.20/2005. The appeals were being jointly considered. Pending the appeals, on 28.05.2018, this Court had passed an interim order of injunction restraining alienation of the properties. In the meanwhile, Janardhanan Pillai died. Consequent to the non-impleadment of his legal representatives, on 21.08.2018 both the appeals were dismissed as abated. 7. Since Janardhanan Pillai was not a party in the present appeal, the appellants sought review of the order dismissing the present appeal. This Court as per order dated 24.01.2023 allowed the review petition and restored the appeal. In the meanwhile, the decree holder alienated the property in favour of the additional respondent No.31, who was subsequently impleaded. 8. The grounds of challenge in the application are:- (i) The suit and the decree are fraudulent and collusive. (ii) There was no valid attachment preceding the sale. (iii) The sale proclamation was settled without production of encumbrance certificate. (iv) The auction was conducted for a grossly inadequate price. (v) Proclamation was not effected before conducting the adjourned sale, thus violating Order XXI Rule 69(2) of the Code of Civil Procedure(CPC). 9. The execution court as per the impugned order rejected the contentions. 10. We have heard Sri.G.Sreekumar (Chelur), learned counsel for the appellant, and Sri.V.G.Arun for the supporting respondent and Sri.T.Krishnannunni, the learned Senior Counsel and Sri.P.Viswanathan, learned Senior Counsel and Adv. Sudhish Kumar for the contesting respondents. 11. Apart from the grounds raised in the memorandum of appeal, the learned counsel for the appellants urged that the execution proceedings which culminated in sale and delivery, are in violation of the decree and hence void. The learned Senior Counsel appearing for the contesting respondent would on the other hand contend that the execution proceedings were strictly in accordance with law. It is further argued that the appellant-petitioner being an assignee under the judgment debtor, has no right to raise the above objections. 12. The reliefs sought in the application, EA 937/2004 reads thus:- “19. Hence this Hon'ble Court may be pleased (1) to set aside the sale dated 18-08-1999, and also to declare the confirmation of sale dated 15-12-1999 was null and void. 12. The reliefs sought in the application, EA 937/2004 reads thus:- “19. Hence this Hon'ble Court may be pleased (1) to set aside the sale dated 18-08-1999, and also to declare the confirmation of sale dated 15-12-1999 was null and void. (2) to found the delivery dated 14-07-2004 is illegal against law and hence redelivery of the property scheduled may be ordered to the petitioner with the cost of the petitioner. (3) to order such other reliefs as may be deemed fit for the interest of justice.” The application is stated to be filed under Order XXI Rule 99 and Section 47 CPC. 13. We proceed to give hereunder few dates and events which are relevant to appreciate the contentions:- 21/03/1977 The properties are attached before judgment. 23/03/1978 The suit is decreed. 28/01/1982 The decree is transferred to Thiruvananthapuram for execution. 01/03/1983 The properties are attached in execution. 25/09/1983 Rule 66 notice is issued. 05/01/1984 Order for proclamation and sale on 21.12.1984. 21/12/1984 Sale was adjourned and was being repeatedly adjourned thereafter. 06/03/1986 Private sale by the judgment debtor to respondent No.29 (third party) pending attachment. 10/08/1988 Order by the trial court in IA 961/1988 lifting attachment over item No.1. 08/11/1996 Order by the execution court on EA 462/1994 holding that item No.1 is not liable to be proceeded against. 06/04/1998 Private sale by respondent No.29 (assignee of the judgment debtor) in favour of the applicant-appellant. 18/08/1999 Court sale in execution. 15/12/1999 Court sale was confirmed. 30/08/2000 Sale Certificate issued. 14/07/2004 Property delivered in execution. 12/08/2004 EA 937/2004 by the applicant-appellant for re-delivery. 14. As is evident from the above, the applicant-appellant and her vendor are purchasers pending an order of attachment. 15. Now we proceed to consider the maintainability of the application under the two provisions, Order XXI Rule 99, and Section 47 CPC. 16. Order XXI Rule 99 falls under the sub-heading “Resistance to delivery of possession to decree-holder or purchaser” under Order XXI, which is titled “Execution of Decree and Orders”. Rule 97 provides for filing of application for removal of resistance or obstruction if any caused, for delivery. Order on such application is passed under Rule 98. Rule 99 provides for filing of an application for re-delivery by a person who is dispossessed in execution of the decree. Order on such application is passed under Rule 100. Rule 97 provides for filing of application for removal of resistance or obstruction if any caused, for delivery. Order on such application is passed under Rule 98. Rule 99 provides for filing of an application for re-delivery by a person who is dispossessed in execution of the decree. Order on such application is passed under Rule 100. Rule 101 states the scope of the applications, be it under Rule 97 or Rule 99. Going by the Rule, all questions, including questions relating to right, title and interest in the property, arising between the parties to the proceedings, are liable to be adjudicated. Rule 103 provides that such order passed under Rule 98 or Rule 100 is a deemed decree. Rule 102 stipulates that a transferee pendente lite of the judgment debtor is not entitled for the remedies above if, the decree is for possession of immovable property. 17. Order XXI Rule 97(1) refers to obstruction by “any person”. In terms of Rule 98(2), if the obstruction was caused “without any just cause” by the judgment debtor or by his transferee, the court shall order the obstruction to be removed. This suggests that even if the obstruction is by the judgment debtor or by his transferee, there could be an adjudication under Rule 98 regarding “just cause” if any. Since in this case Rules 97 and 98 does not come into play, we are refraining from delving into the scope of the words “just cause” occurring therein. 18. On the other hand, Order XXI Rule 99 specifically confines the right to seek for redelivery to a person ‘other than the judgment debtor’. A judgment debtor has been specifically excluded under Rule 99, thus disabling a judgment debtor from moving thereunder for redelivery. Noticeably, the transferee of a judgment debtor is not seen excluded under Rule 99. This suggests that the transferee of a judgment debtor is entitled to move under Rule 99 seeking redelivery. 19. As was noticed supra, Order XXI Rule 102 excludes pendente lite transferees of judgment debtors from the provisions relating to obstruction and for redelivery. However, Rule 102 confines its application to execution of a decree for possession of immovable property, though Rules 97 and 99 apply to delivery under an execution sale also. 19. As was noticed supra, Order XXI Rule 102 excludes pendente lite transferees of judgment debtors from the provisions relating to obstruction and for redelivery. However, Rule 102 confines its application to execution of a decree for possession of immovable property, though Rules 97 and 99 apply to delivery under an execution sale also. Therefore it would appear that even a pendente lite transferee of a judgment debtor is entitled to apply under Rule 99 for redelivery in a case where the delivery was under an execution sale. 20. Then the question arises as to what rights such transferee of the judgment-debtor is entitled to put forward under O.XXI R.99. As noticed supra, the judgment debtor is precluded from moving under the Rule. His rights have already been adjudicated. For the said reason a transferee from the judgment debtor cannot attempt to rake up the very same rights of the judgment debtor. But then, he can rely upon his independent rights dehors the judgment debtor. 21. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr. 1997 (3) SCC 694 , the Apex Court held :- “O.21 R.97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree holder. While O.21 R.99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment debtor.” The right that could be claimed in a proceeding under Rule 99 is the right of the applicant independent of the judgment debtor, was reiterated by the Apex Court in Shreenath and Anr. v. Rajesh and Ors. 1998 (4) SCC 543 ; it was held, “... After investigation under R.98 the Court puts back a decree holder in possession where the Court finds obstruction was occasioned without any just cause, while under R.99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the Court has to dismiss the decree holder's application. After investigation under R.98 the Court puts back a decree holder in possession where the Court finds obstruction was occasioned without any just cause, while under R.99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the Court has to dismiss the decree holder's application. Thus even prior to 1976 right of any person claiming right on his own or as a tenant, not party to the suit such person's right has to be adjudicated under R.99 and he need not fall back to file a separate suit. By this, he is saved from a long litigation. So a tenant or any person claiming a right in the property, on his own, if resists delivery of possession to the decree holder the dispute and his claim has to be decided after 1976 amendment under R.97 read with R.101 and prior to the amendment under R.97 read with R.99. ...” In H.Seshadri v. K.R.Natarajan and Anr. (2003) 10 SCC 449 , the Apex Court held that what to be considered is whether the applicant claim right independent of the judgment debtor or not. In Ittiyachan v. Tomy 2001 (3) KLT 117 , the same principle was reiterated by a Division Bench of this Court. It was held that mere possession by the claimant would not be sufficient and that he has to show a right to possession independent of the judgment-debtor. 22. Therefore, though any person other than the judgment debtor who was not eo nominee a party to the proceeding would be entitled to maintain an application under Rule 99, necessarily he has to set up his own right, independent of and dehors the right of the judgment debtor. It is only such a right that could be put forward under R.99. In the present case, the right claimed by the applicant is only one under the judgment debtor and not independent of it. Therefore, the application is not liable to be considered under the Rule. 23. There is yet another reason on which the application under R.99 is bound to fail. The property was under attachment. It is pending the attachment, on 06.03.1986, that the judgment-debtor conveyed the property to the applicant’s vendor. Again, the applicant purchased the property on 06.04.1998 pending the attachment. 23. There is yet another reason on which the application under R.99 is bound to fail. The property was under attachment. It is pending the attachment, on 06.03.1986, that the judgment-debtor conveyed the property to the applicant’s vendor. Again, the applicant purchased the property on 06.04.1998 pending the attachment. In terms of Section 64 CPC, the transfers are void against all claims enforceable under the attachment. It is in enforcement of such claim that the property was sold and delivered. Therefore, as against the decree holder, the applicant-appellant and her vendor did not obtain any rights over the property under the conveyances in their favour. On that ground, the application under Order XXI Rule 99 is bound to fail. 24. Now we proceed to consider whether the application could be considered under Section 47 CPC. Under the Section, either parties to the suit or their representatives are entitled to move thereunder for determination of issues relating to the execution, discharge and satisfaction of the decree. The applicant was not a party to the suit. The suit was one for money. Viewed in that angle, the applicant may not be a representative of the judgment debtor. However, in so far as the property involved is concerned, the applicant is claiming rights under the defendant-judgment debtor. Therefore, the applicant falls within the term “representative” occurring under Section 47(1). The mere fact that the applicant purchased the property pending an order of attachment, will not make her status anything less than a representative of the judgment debtor. Section 64 of CPC does not make private transfers pending attachment void in toto. It only makes such transfers void as against the claims enforceable under the attachment. Therefore, the applicant becomes a representative of the judgment debtor, entitled to maintain an application under Section 47. 25. In A.G.M. Constructions (P) Ltd.(M/s) v. S. Shibu Kumar and Others 2010 (4) KHC 22 , this Court held that an assignee of the property pendente lite on the face of an attachment, is nonetheless a “representative” in interest of the defendant-judgment debtor, and is entitled to maintain an application under Section 47 of the CPC. In Gangabai Gopaldas Mohata v. Fulchand and Ors. [ 1997 SCC 10 387] the Apex Court held, “Even a transferee pendente lite is a representative of his transferor within the meaning of sub section (3) of Section 47”. 26. In Gangabai Gopaldas Mohata v. Fulchand and Ors. [ 1997 SCC 10 387] the Apex Court held, “Even a transferee pendente lite is a representative of his transferor within the meaning of sub section (3) of Section 47”. 26. Therefore, in the case at hand, though the applicant is not entitled to maintain the application under Order XXI Rule 99, she could still prosecute it under Section 47. As was noticed earlier, the application has been filed both under Section 47 and Order XXI Rule 99 CPC. 27. The learned senior counsel for the respondent would point out that, an order under Section 47 CPC is not appealable and hence if the application is considered as one under Section 47 the appeal will have to be dismissed on that ground. While we notice that once we decide to treat the application as one under S.47 an appeal would not lie, still such order is revisable before this Court. The appeal is of the year 2005. We do not think that it would be proper to dismiss the appeal at this distance of time, leaving open the right to move a revision. Hence we proceed to consider this proceeding on its merits. 28. Now coming to the contentions, according to the applicant there was no attachment over the property and there was no proclamation as mandated under Order XXI CPC. The execution court held that both the contentions are bereft of substance. It was found that the property was attached on 01.03.1983 and that the records reveal settlement of proclamation on complying with all the prescriptions under Order XXI CPC. But for the bald allegations, no evidence is adduced by the applicant to substantiate the contentions. In terms of Section 114 of the Evidence Act, until the contrary is proved, official acts are presumed to have been regularly and properly done. The applicant has kept away from the witness box and has not attempted even to vouch to her contentions. 29. It is the contention of the applicant that the execution proceedings are void, it being contrary to and in violation of the decree. The decree directed the hypothecated property to be proceeded against first, and defendants 1 to 4 are to be personally proceeded against only if the decree remains unsatisfied. According to the applicant, the direction has been violated. 30. The decree directed the hypothecated property to be proceeded against first, and defendants 1 to 4 are to be personally proceeded against only if the decree remains unsatisfied. According to the applicant, the direction has been violated. 30. The relevant part of the decree reads thus :- “If the sale proceeds of the hypotheca do not satisfy the decreetal amount, the defendants 1 to 4 are personally liable jointly and severally.” In the suit the plaintiffs had sought for attachment of six items of immovable properties belonging to the defendant. The property involved in this proceeding is a portion of item No.5 therein. According to the applicant item No.1 therein, having an extent of 2 acres and 43 cents with a building thereon, situated in Sy. Nos.646, 647, 648, 650/2D of Vanchiyoor village is the “hypotheca” referred to in the decree. Without exhausting execution against item No.1, the other items including item 5, could not have been proceeded against. Item No.1 was released from attachment as per the order on I.A.No.961/1988. When the said item was sought to be proceeded against subsequently, the execution court as per the order on E.A.No.462/1994 held that the said item cannot be proceeded against in the light of the order on I.A.961/1988. Those orders have become final. Since item No.1 has not been sold, in terms of the direction in the decree the other properties could not be proceeded against. Therefore, the execution levied against the property involved in the present application (item no.5 in the attachment schedule mentioned above), is in violation of the decree and is void, is the contention. 31. The argument of the appellant is bound to fail for reasons more than one. At the very outset it is to be noticed that the applicant never had such a plea nor had she urged such contention before the execution court. No evidence is adduced to substantiate her contention regarding mortgage or hypotheca. Raising such contentions without any plea nor evidence, is of no avail. 32. Admittedly, neither the judgment nor the decree give the details of the “hypotheca”. No evidence is adduced to substantiate her contention regarding mortgage or hypotheca. Raising such contentions without any plea nor evidence, is of no avail. 32. Admittedly, neither the judgment nor the decree give the details of the “hypotheca”. The learned counsel for the appellant would, by referring to paragraph 10 of the plaint, argue that it is evident from the pleading and the letter dated 11.11.1971 produced by the plaintiff along with the plaint and marked as serial number 8 in the list of documents therewith, would prove beyond doubt that the item No.1 property is the “hypotheca”. 33. We are unable to agree with the applicant/ appellant. Paragraph 10 of the plaint reads thus :- “10. On the 13th November 1970 the 1st defendant firm and the 2nd defendant and the 3rd defendants executed a promissory note for Rs.3,14,771/- out of the aforesaid sum of Rs. 6,54,133.90 as collateral security in favour of the plaintiff and undertaking to deposit with the plaintiff the title deeds of the Eastern Palace Building in Trivandrum belonging to them to create an Equitable Mortgage for the amounts due from the defendants to the plaintiff. For the balance amount of Rs.3,39,362.90 another promissory note was executed in favour of the plaintiff on 30th December 1970 by the 1st, 2nd and 3rd defendants.” Evidently, the plea is only to the effect that the defendants will create an equitable mortgage of the ‘eastern palace building’, to secure the amounts due from the defendants. There is no further plea that pursuant to such undertaking a mortgage was created. The learned counsel for the appellants wants the Court to assume that pursuant to such undertaking a mortgage was created. The argument is too far fetched. If pursuant to the letter a mortgage was created, that would have definitely been pleaded, and a relief sought in the plaint accordingly. If we accept the contention, that would be nothing short of a surmise. 34. That apart, even if we assume that a mortgage was created, there is lack of clarity regarding identity of the mortgaged property. The claim is that item No.1 in the attachment schedule is the mortgaged property. As was noticed earlier, item No.1 is 2.43 acres with building thereon. Paragraph 10 of the plaint only mentions about the proposed mortgage of “the eastern palace building”. The claim is that item No.1 in the attachment schedule is the mortgaged property. As was noticed earlier, item No.1 is 2.43 acres with building thereon. Paragraph 10 of the plaint only mentions about the proposed mortgage of “the eastern palace building”. It has not been established that the eastern palace building is included in item No.1. Attempting to substantiate the contention, the appellant relied on the letter dated 13.11.1970 produced along with the plaint. The said letter was not sought to be marked and brought in evidence. The said letter is one issued by the defendants to the plaintiff. Therein it is mentioned that they have agreed to deposit the title deeds of the property mentioned therein to secure their liability. The property mentioned therein is 2.57 acres with eastern palace building and premises situated in Sy. Nos.646, 647, 648, 649 and 650. As could be seen, the attachment schedule item No.1 did not include the property in survey 649. So also, in the attachment schedule the extent is only 2.43 acres. Further, the above attachment schedule mentions about several buildings, whereas the letter refers only to the eastern palace building. The attachment schedule description does not make mention of “eastern palace building” and also does not contain Survey No. 649 mentioned in the letter. Suffice to notice that the materials are insufficient to find that the attachment schedule item No.1 property was mentioned as “the hypotheca” in the decree, and also that the said item takes in the “eastern palace building”. 35. It is also to be noticed that when the decree is on a mortgage, it being one relating to immovable property, in terms of Order XX Rule 9 CPC, the property is to be scheduled to the decree. The decree does not contain any schedule of immovable property or “hypotheca”. 36. It is also to be noticed that, the term “hypotheca” is usually employed with regard to movables which are hypothecated and not immovable property. The transaction between the plaintiff and the defendant related to sale of truck chassis. As contended by the respondents, it cannot be ruled out that the hypotheca referred to in the decree was to such movables. At any rate there is no sufficient evidence to find that the “hypotheca” mentioned in the decree is the attachment schedule item No.1 property. 37. As contended by the respondents, it cannot be ruled out that the hypotheca referred to in the decree was to such movables. At any rate there is no sufficient evidence to find that the “hypotheca” mentioned in the decree is the attachment schedule item No.1 property. 37. Even assuming that in terms of the decree item No.1 was to be first proceeded against and it is only on exhausting the remedies against item No.1 that the other items could be proceeded against, as was noticed earlier, the trial court had, as per order on IA No.961/1988 and pending the execution proceedings, ordered lifting of attachment against item No.1. This was followed by the order dated 08.11.1996 on EA 462/1994 at the instance of the judgment debtor, wherein it was held that item No.1 cannot be proceeded against. The court had further ordered the execution to be proceeded against other items. Under such circumstances, it could be treated that the remedies against item No.1 which according to the applicant is the “hypotheca”, was exhausted, and it is only thereafter that the property in question was sold. Viewed in that manner it cannot be said that there has been any violation of the direction in the decree. 38. That apart, taking it to be that sale of property was held in a sequence different from that specified in the decree, still it cannot be said to be a sale without jurisdiction. The court had jurisdiction over the subject matter. If a different order was being resorted to, it was open for the judgment debtor to raise objection. It was an objection that could be waived. Such objection was never raised and hence must be deemed to have been waived. The mere fact that sale of properties was held in an order different from that specified in the decree is only, at the worst, an irregularity and would not render the sale void. 39. In Kunji Amma Madhavikutti Amma v. Krishna Pillai Raman Pillai ( 1957 KLT 1285 ), the decree provided that item No.3 was to be sold in the last instance. However, the said item was sold first. Considering the question as to whether the sale is void, the Court answered in the negative. It was held that it is only an irregularity rendering the sale voidable. However, the said item was sold first. Considering the question as to whether the sale is void, the Court answered in the negative. It was held that it is only an irregularity rendering the sale voidable. It was also held that Article 166 of the Limitation Act, 1908 (corresponding to Article 127 of the Limitation Act, 1963) applies to such application. Therein the court had relied on the judgments in Ammakutti Achi v. Doraiswami Aiyar ( AIR 1928 Mad. 140 ), Marie Fernandez v. Madhavi ( 1955 KLT 46 ) and Manasaram Paria v. Raja Nagendra Nath Sahu Roy (18 Indian Cases 235). 40. In Rajarethna Naikkan v. Parameswara Kurup [ 1997 (1) KLT 777 ], while deliberating on the distinction between a void sale and an irregular sale, this Court observed, “In Dhirendranath v. Sudhir Chandra ( AIR 1964 SC 1300 ), the Supreme Court has approved the observation of Justice Colridge in Holmes v. Russel ((1841) 9 Dowl 487) to the following effect: “It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.” and has commended it as a 'workable test'. Their Lordships have also quoted Mr.Justice Mookerjee in Ashutosh Sikdar v. Behari Lal Kirtania (1908 ILR 35 Cal. 61) to the following effect : “..... no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated”. 41. The violation of the sequence or the order in which the sale of the properties were to be held, is thus, a mere irregularity. When the judgment debtor who had appeared in the proceeding never objected to the same, it is doubtful whether he could urge even such contention after the sale is held. 41. The violation of the sequence or the order in which the sale of the properties were to be held, is thus, a mere irregularity. When the judgment debtor who had appeared in the proceeding never objected to the same, it is doubtful whether he could urge even such contention after the sale is held. At any rate, it could only be a ground available under Order XXI Rule 90 CPC to set aside the sale. Such application is to be filed within 60 days from the date of sale in terms of Article 127 of the Limitation Act, 1963. Admittedly such a course was not resorted to. Hence the challenge on the said ground fails. 42. It is next urged by the appellant that the sale was held without proper proclamation as mandated under Order XXI Rule 66 CPC. The execution court has held that the sale was conducted after settling the proclamation with due notice to the judgment debtor. It could not be established before us that there has been any violation with regard to effecting of proclamation. The learned counsel for the appellant would argue that the sale was held after adjourning it for a period beyond thirty days and that in terms of Order XXI Rule 69(2) there ought to have been a fresh proclamation. The same has been violated, it is argued. As was noticed above, the execution court has held that the sale was conducted with due compliance to all the prescriptions under Order XXI CPC. Evidently, the case was being got adjourned at the instance of the judgment debtor on one ground or the other. The sale was ultimately held only in the year 1999. As noticed, the judgment debtor had due notice with regard to settling of proclamation. The judgment debtor had appeared and was contesting the proceeding. Such a violation as alleged, could not be established before us. 43. Even assuming that the sale was held beyond 30 days from the date fixed in the earlier proclamation and that a fresh proclamation was not held, this Court has in Alikunju Pathummal Kunju v. Aiyappan Sanku Panicker [ 1956 KLT 954 ] held that such sale is only a mere irregularity. The same view was reiterated in Subrahmanya Bhat Y. v. P. Santhosh Kumar & Another [ 2010 (2) KLT 59 ]. The same view was reiterated in Subrahmanya Bhat Y. v. P. Santhosh Kumar & Another [ 2010 (2) KLT 59 ]. Again, the remedy of the judgment debtor lay under Order XXI Rule 90 CPC. Admittedly such application has not been filed. The sale cannot be sought to be set aside, on such ground, under Section 47 CPC. In Subrahmanya Bhat's case (supra) this Court held, “... An application, at his instance, to impeach the sale under Section 47 of the Code on the ground of omission to draw up a fresh proclamation in conducting the sale beyond the period of 30 days from the previous date fixed for sale is not entertainable as that omission is only a material irregularity which does not render the sale void, but only make it voidable. ...” 44. The learned counsel for the appellant would next contend that the sale held was ab initio void for the reason that the sale was held beyond the amount due under the decree. The contention is that, the amount due under the decree as on the date of sale was only Rs. 12,38,000/- approximately, whereas the sale was held for Rs. 14,38,000/- approximately. The sale of a portion of the property would have been sufficient to satisfy the decree. The court has violated the mandate under Order XXI Rule 64 of CPC, it is argued. A host of decisions, of the Apex Court and of this Court, including Ambati Narasayya v. M. Subha Rao & Anr. ( AIR 1990 SC 119 ) and Regi George v. K.K.Bhaskaran Nair & Ors. [ 1998 (2) KLT 640 ] were placed in support of the proposition. 45. We do not think that this is a case where the above proposition is attracted. Firstly, the figures as above is just a calculation made by the appellant and handed over to this Court. The calculation made by the execution court to arrive at the amount due, has not been adverted to. Apart from the fact that while settling the proclamation there was no objection by the judgment debtor that the sale of the entire property would not be necessary to satisfy the decree, it is to be noticed that, even accepting the allegations of the applicant the difference in the sale price and the amount due (even going by the calculation handed over), is not much. There is no material to find that a portion of the property sold could have been carved out and excluded in a reasonable manner, so as to have the sale effected exactly at the amount due. Often, the property brought to sale may not be able to be divided in such a manner as to confine the sale to a portion to fetch exactly the same value as the amount to be recovered. In the absence of any contention or evidence to show that the property could have been divided and sale of a portion of the property was possible, and that such sale would have been sufficient to satisfy the decree debt, the contention is bound to fail. 46. As was noticed supra not only that such contentions were not raised during the sale proceedings by the judgment debtor but also that such a contention was not pleaded or proved even in the present proceedings before the execution Court. These are arguments urged before this Court without any foundation having been laid. 47. In terms of Section 146 and Order XXII Rule 10 CPC, the applicant being the person on whom the interest of the judgment debtor over the property devolved, she stepped into the shoes of the judgment debtor. All contentions available to the judgment debtor are available to her also. However, this would necessarily mean that, the contentions which are not available to the judgment debtor as on the date when the present application was filed, would not be available to the applicant also. The applicant cannot claim a better right or interest than that of her assignor-judgment debtor. 48. It is to be noticed that the judgment debtor was very much contesting the proceedings in execution. No objection was raised at any point of time that, the hypotheca was available for sale and that the defendants judgment debtor could be personally proceeded against only after sale of the same, that there was lack of fresh proclamation etc. It was not open for the judgment debtor to urge such contentions at this stage since they might and ought to have taken up that contention at the appropriate time in the execution proceedings. Such plea being not available to the judgment debtor, is not available for the appellant-applicant who is only a “representative” of the judgment debtor-defendant under Section 47 CPC. Such plea being not available to the judgment debtor, is not available for the appellant-applicant who is only a “representative” of the judgment debtor-defendant under Section 47 CPC. The contentions now attempted to be urged were all which could have been urged by the judgment debtor at the appropriate time. The judgment debtor having not chosen to do so, it is not open for the applicant to raise the same at a stage after delivery. Raising of such contentions is barred by constructive res judicata (See Barkat Ali and Anr. v. Badri Narain (Dead) by LRs. 2008 (1) KLT 1022 ). 49. Incidentally it is to be noticed that the sale in favour of the applicant was in respect of 16 cents in the year 1998. It was for an amount of Rs.6,80,000/-. The court auction sale was in the year 1999 and it was for an amount of Rs.14,38,919/- for an extent of 32 cents. Evidently there is hardly any difference in the value. Therefore, the allegations regarding court sale at a grossly inadequate price etc, fail. 50. All these apart it is to be noticed that, in the sale deed in favour of the applicant, the first attestor is one of the judgment debtors. It cannot be believed that the applicant was not aware of or made aware of the pending execution proceedings against the property. If at all the said fact was not disclosed to the applicant in spite of the fact that one of the judgment debtors was an attestor to the sale deed, the remedy of the applicant lies against them. Though an allegation is raised that the suit and the execution proceedings are collusive, no evidence is adduced regarding the same. The contentions of the appellant are found to be without merit and the appeal is liable to be dismissed. Resultantly, the appeal fails and is dismissed.