Untwalia, J.:— This appeal by the plaintiffs under clause 10 of the Letters Patient on leave granted by a learned single Judge of this Court arises out of a suit filed by them for a declaration that the auction sale held on 17th May, 1950, and the delivery of possession following upon it on 23rd September, 1950, with respect to a house situate in mauja Khusrupur in the district of Patna are null and void and inoperative to divest the title of the plaintiffs thereto.

2. The principal defendants obtained a money decree against the plaintiffs and other members of their family in the civil court of Deoria (U.P) on 14th June, 1932. Subsequently, on an application being made under order 9 rule 13 of the Code of Civil Procedure, the ex parte decree as against one Madho Lal who was defendant No. 1 in the action was set aside and the suit on being tried afresh was dismissed as against him on 17th July, 1936; but the decree against the plaintiffs passed on 14-6-32 remained. The said decree was attempted to be executed by getting it transferred to the district of Patna for execution and the final transfer of the decree was made by virtue of the order dated 16-7-48. The said order was apparently within 12 years of the 17th July, 1936, but was beyond 12 years of the date of the decree against fie plaintiffs. The execution case in which the impugned sale was held was actually filed on 14-7-49, and it was obviously beyond the period of time provided in Section 48 of the CPC (hereinafter to be referred to as ‘the Code’).

3. Sale was held on 17-5-50 and delivery of possession was effected on 23-9-50. According to the plaintiffs, all the notices and the processes in the execution case were fraudulently suppressed by the decree-holders respondents in order to get the time-barred decree executed without the know ledge of the appellants. Their further case is that after separation in their family they had shifted to mauja Counpura and were not residing at Khusrupur at the time of the alleged service of notices and processses in the execution case.

4. The trial court as also the appellate court held that the decree, in view of the provisions of section 48 of the Code, was barred by time. This matter was not in controversy before the learned single judge of this court who heard and disposed of the second appeal nor was it disputed before us. It is obvious on the facts of this case that the sale was held in execution of a decree executed in contravention of the provisions of section 48 of the Code.

5. But the courts have differed in regard to the question as to whether the present suit was maintainable in view of the bar of section 47 and Order 21, Rule 92(3) of the Code. The two courts of fact below have also differed in regard to the question as to whether the notices and the processes in the execution case were not served and fraudulently suppressed. The learned Munsif has not accepted the case of the appellants that the processes were fraudulently suppressed and has come to hold that nothing was done behind their back as contended by them. The lower appellate court has believed the appellants' story about the fraudulent suppression of notices and other processes of the execution case.

6. The first question for determination in this appeal is as to whether the present suit in barred either under section 47 or under Order 21, rule 92 of the Code. The learned single Judge of thing court seems to be of the view that the sale held in execution of a time-barred decree is not void but voidable and, therefore, in view of the provisions, of sub-rule (3) of R. 92 of order 21 of the Code, the suit was not maintainable as the sale could only be attacked on the ground of fraudulent suppression of processes under order 21 rule 90. With respect I say that the present suit is not barred in view of the provisions of rule 92(3) of the said order as the attack on the sale is not on the grounds of fraud in publishing and conducting the sale only — a ground covered by Rule 90 — but is on a ground which goes beyond the scope of that rule and comes in the realm of section 47 of the Code.

7. It is well settled that a judgment-debtor applying for setting aside the sale or for declaring it a nullity on grounds other than those mentioned in Order 21, Rule 90 of the Code has to do it under section 47 and not by a separate suit (Ramlalsahu v. Mt. Ramia*, AIR 1947 Pat 454 (FB) and Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87). This is so irrespective of the question as to I whether the sale is void or voidable. The direct authorities on the point that, if a sale is attacked on the ground that it could not be held as the decree was barred by time, the question is one to be determined by the executing court, are Najabut Ali Chowdhry v. Busseeroolah Chowdhry, 20 Suth WR 5 and Zumeer Sirdar v. Assemoodeen Sirdar, 23 Suth WR 257. Learned counsel for the appellants was not able to cite any authority before us taking a contrary view. I, therefore, hold that the suit was not maintainable in View of the bar provided in Sec. 47 of the Code.

8. Being confronted with this difficulty learned counsel for the appellants on the authority of the Supreme Court case referred to above, (S) AIR 1956 SC 87, asked us to exercise our discretion under subjection (2) of section 47 and treat the suit as a proceeding under that section. As we felt inclined to do so, it necessitated the examination of the two questions as to whether on the date of the suit an application for the relief claimed was barred by limitation and whether the court in which the suit was filed was competent to execute the decree.

9. In order to determine the question of limitation, it is necessary to decide as to whether a sale held in execution of a time-barred decree was void and a nullity or it was merely voidable. The sale in this case was held, as I have stated above, On 17-5-50; the suit was filed on 18-11-50 alleging that the appellants learnt about the sale on 7-9-50. The suit was, therefore, obviously beyond 30 days of the date of sale or the alleged date of knowledge but was well within 3 years of it.

10. It is now well settled by various authorities that, if the sale is merely voidable then an application by the judgment-debtor even under section 47 of the Code has to be Sled under Article 166 of the Limitation, Act within 30 days from the date of the sale. By alleging fraud of the decree-holder which; might have kept him out of knowledge of the sale, he may take advantage of the provisions of section 18 of the Limitation Act. But if the sale is void, the application for declaring it so or even for setting it aside — as a matter of abundant precaution — can be filed within 3 years under Article 181 of the Limitation Act. This point is also covered by the Supreme Court case referred to above.

11. The question as to whether a particular transaction, proceeding or order is void or voidable has many a time confronted with difficulties the courts in England as well as in India, and the present case is of such a nature. Had it been a case where the notice under order 21 rule 22 could have been found to have been served upon the appellants as was found by the trial court; there would have been no difficulty on the authorities of Venkatalingamma v. Dhanaraj Girji, AIR 1929 Mad 826, Prokash Chandra v. Barada Kishore, AIR 1934 Cal 282 and Venkappa v. Lakshmikant Rao, (S) AIR 1956 Hyd 7 (FB) in taking the view that the, objection was barred on the principle of constructive res judicata and was no longer open to be agitated in support of the attack on the sale.

12. But, here, on the finding of the final court of fact, namely, the lower appellate court, processes including the notice under order 21 rule 22 were suppressed by the decree-holder, that is to say, were not served. The two questions which emerge for determination, therefore, are W whether the failure on the part of the decree-holders to serve any notice on the appellants makes the execution proceeding and the sale held therein void and a nullity; and (ii) whether the executing court had absolutely no jurisdiction to execute the decree which was barred by time in that it had crossed the maximum time provided in section 48 of me Code.

13. On the first question, there has been a considerable divergence of opinion in this court as well as in other courts. The preponderance of view has been that failure to issue or serve the notice under order 21 rule 22 of the CPC makes the sale a nullity (vide Raghunath Das v. Sundar Das Khetri, 41 Ind App 251 : (AIR 1914 P.C 129), Ramdhari Singh v. Saligram Singh, AIR 1954 Pat 429 and Rajagopaia Aiyar v. Ramanujachariyar, AIR 1924 Mad 431 (FB)). The Full Bench decision of the Madras High Court was given after considering the effect of sub-rule (2) of rule 22 introduced by the Code of 1908. In Craig v. Kansen, (1943) 1 All ER 108. Lord Greene, in M.R, observed as follows at page 113:

“In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure if litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England. To say that an order of that kind is to be treated as a mere irregularity, and not something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be sustained.”

14. But the matter is beyond controversy now so for as this Court is concerned in view of the introduction of sub-rule (3) in rule 22 of order 21 of the Code by the Patna amendment on 9-5-47. The said sub-rule runs thus:

“Proceedings held in execution of a decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under sub-rule (1) or to record reasons where such notice is dispensed with under sub-rule (2) unless the judgment-debtor has sustained substantial injury thereby.”

15. It is manifest that, in view of the introduction of sub-rule (3) by the Patna High Court in 1947 the matter of omission to issue or failure to serve a notice under sub-rule (1) of rule 22 of order 21 is not an illegality of a kind which goes to lie root of the jurisdiction but is a mere irregularity as the judgment-debtor has to show that he has sustained injury by such omission or failure. That is to say he has to show that the ex parte proceeding without notice to him has prejudiced him and has caused loss to him.

16. The omission to issue or failure to issue such a notice by itself, therefore, is no longer a matter of want of jurisdiction and does not render the execution proceeding or the sale held therein void and a nullity. It has got to be avoided by the judgment-debtor by showing prejudice and injury to him. While dealing with a similar change in law with reference to the amendment made in Section 537 of the Cr PC, a Bench of this Court in, Birichh Buian v. The States, AIR 1961 Pat 255 to which I was a party, has pointed out that a criminal trial held by misjoinder of persons which before the amendment of 1956, was illegal was merely irregular after the amendment and was not vitiated unless prejudice was shown.

17. The question which now remains to be considered is as to whether the execution of the decree after the maximum period provided in Sec. 48 of the Code cart be said to be without jurisdiction making the sale a nullity and liable to be declared so. There cannot be any doubt that in view of the bar aforesaid the decree could not be executed and sale could not be held and the execution court did commit an error in this regard.

18. But can it be said that the error was of a kind which went to the root of the jurisdiction of the court and made the proceedings and the sale void? The appellants, if they would have filed their application within 30 days of the date of the sale or the date of their knowledge (if the case came under Section 18 of the Limitation Act), could have succeeded in avoiding the sale on this ground and in asking the court to set it aside.

19. But can they say now that the sale on this score is a nullity? Although the 3 authorities, namely, AIR 1929 Mad 828 : AIR 1934 Cal 282 and (S) AIR 1956 Hyd 7 (FB) relied on behalf of the appellants as also by the learned single Judge of this court in support of this decision that the sale is avoidable and not void, are help in solving the question at issue, they are not direct authorities on the point. As I have indicated above, the material point of distinction is that in all these cases the judgment-debtors' plea of the bar of time in the way of the decree-holder had either been expressly negatived or was deemed to have been negatived on the principle of constructive res judicata.

20. In the instant case, it is manifest that relief could not be refused to the appellants on this score had they come within the proper time for the setting aside of the sale. Several decisions were cited before us by learned counsel for the appellants, namely Gajanand Sha v. Dayanand Thakur, AIR 1943 Pat 127, Dineslwar Prasad Singh v. Deoniti Prasad Singh, AIR 1959 Pat 199, Narayanan Damodaran Namboodiri v. Kuriathu Yohannan, (S) AIR 1957 Trav-Co 109 (FB) and Amina Bai v. South India Corporation Ltd., Mattancherry, (S) AIR 1957 Trav-Co 200 (SB), in support of the proposition that after the expiry of the period of 12 years as provided in Sec. 48 of the Code even a new property could not be brought in and proceeded against by way of amendment to the execution petition which had been filed before the expiry of the said period. Our attention was specially drawn to the following observations of the Special Bench of the Travancore-Cochin High Court in (S) AIR 1957 Trav-Co 200:

“……… the court will have no jurisdiction to allow execution against properties mentioned for the first time in a list filed 12 years after the date of the passing of the decree, even though that list happened to be filed when an execution application filed within time was pending.”

21. Of course, the execution court cannot execute a decree barred by time under Sec. 48 of the Code and not even against new properties sought to be added by way of amendment to the previously filed application. The said section provides:

“Where an application to execute a decree…… has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from (a) the date of the decree sought to be executed,……”

22. But, if an order for execution is made in contravention of the bar provided in Sec. 48, can it be said that the court does an act which it had no jurisdiction to do? In my opinion, the answer is that it commits an error of law, no doubt, but does not do anything which it had no jurisdiction to do. The word ‘Jurisdiction’ used by the Special Bench of the Travancore Cochin High Court in the case referred to above has not been used in the strict sense of the word. No direct case was cited by either side at the Bar on the question at issue. In the case of 20 Suth WR 5, referred to above, following the case of Golam Asgar v. Lakhimani Debi, 13 Suth WR 273 it is held:

“……. that the circumstance of the execution of a decree under which a sale had taken place being barred by lapse of time invalidated the sale which took place under that execution”.

23. But in 23 Suth WR 257 also referred to above, Couch, C.J, has observed:

“We express no opinion upon the question of the effect of not executing the decree for three years, whether it makes the decree void, so that anything that has been done under it need not be set aside by a Court, or is an irregularity which makes it necessary that an application should be made to the Court to set aside the sale. The words of Sec. 20 of Act XIV of 1859 do not say that the decree shall be void if no process of execution has been taken out within three years. They are that no process of execution shall issue. If process of execution has issued, and sales have been made, the persons injured thereby should apply to the court to have them set aside: and if they omit to do so, it may be that they cannot, after the lapse of several years, bring a suit saying that the proceedings are entirely void, and confer no right upon a person who has: become a purchaser under them.”

24. On transfer of the decree by the court which had passed it, the transferee court had jurisdiction to execute the decree. It committed a sad mistake in that it executed the decree in contravention of the provisions of Sec. 48 of the Code but that would not make the execution proceedings null and void. One of the foremost and well-accepted tests in such a matter is to find out as to whether the sale held therein could be ignored or attacked in a collateral proceeding.

25. The purchaser in such a sale, whether he be a decree-holder himself or a third person, gets a good title and can lose it only if the sale is avoided in a proper proceeding by getting it set aside. It is here that the principle of res judicata, either direct or constructive, resorted to in the 3 cases of the Madras, Calcutta and Hyderabad High Courts referred to above is of help to us. If the judgment-debtor appears and contests the execution proceeding on the ground of limitation, the court has jurisdiction to decide the matter rightly or wrongly. In this connection reference may be made to the case of Malkarjun Shidramappa v. Narhari Shivappa, 27 Ind App 216 (PC) where at page 225 Lord Hobhouse while delivering the judgment on behalf of the Board has said:

“…….but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however, wrong, cannot be disturbed…… But to treat such an error as “destroying the jurisdiction of the court is calculated to introduce great confusion into the administration of the law.”

26. If the judgment-debtor on being served with the notice of the execution case fails to appear and take the objection of the bar of limitation at the proper time, constructively it will be deemed that the court had decided the point of limitation against him. If the matter of limitation would have been of a kind which went to the root of the jurisdiction of the court, the point would have been open to be taken at a subsequent stage and even in a collateral proceeding.

27. In that situation, it would have been difficult to stop the judgment-debtor from raising this point on the ground of res judicata, especially of the constructive type. In this connection it is important to note that in the Supreme Court case reported in (S) AIR 1936 SC 87 (supra), the judgment-debtors had appeared and filed their objections in the execution case in which the sale of the excess property not warranted by the mortgage decree had been held and had failed to raise this question at the appropriate time, yet they were not debarred (of course, the point does not seem to have been raised before the Supreme Court) to raise this point for the first time in a subsequent proceeding attacking the sale as being without jurisdiction.

28. I would like to support the view which I have taken by taking the analogy of a suit and the decree passed therein. Suppose a claim is made in a suit which was barred by limitation. Decree is obtained, let us assume, without service of summons in the suit on the defendant and by fraudulently suppressing it. The defendant, in such a situation either in a proceeding on order 9 rule 13 of the Code of Civil Preceding if he comes within 30 days from the date of decree or its knowledge, will be able to get decree set aside or in a properly constituted will get the same relief on the ground of ??? and therein it would be open to him to ??? that the suit was barred by limitation in ??? of his allegation of the motive for the commission of fraud: (vide Sheikh Rahmat Ilahi ??? Mohammad Hayat Khan, AIR 1943 PC 208).

29. But unless the decree is got rid of in ??? of the appropriate proceedings, the decree ??? not be ignored and challenged as a nullity ??? in execution or in any collateral proceeding, find no justification for taking a different ??? in this regard in relation to a proceeding in ??? I, therefore, hold that the execution the decree in question was not without jurisdiction and the sale was not a nullity. Thus, it lows that the remedy of the application ??? Section 47 of the Code was barred under Article ??? of the Limitation Act on the day a the suit instituted. The prayer, therefore, made on half of the appellants for treating the suit proceeding under Sec. 47 of the Code fails this ground alone.

30. In regard to the second question as whether the ??? which the suit was filed ??? competent to execute the decree, I find some ??? fusion on fact. In the judgment of the trial ??? it is stated that the decree was transferred ??? Patna for execution and the execution case filed in the 3rd court of Munsif at Patna ??? in the judgment of the lower appellate court ??? mentioned that the execution case was filed the court of the Munsif at Barh in the district Patna. The present suit has been filed in 3rd court of Munsif at Patna. I, therefore, do propose to decide this matter as it is not ??? to decide it in view of my decision on first question. In the result, the appeal fails and dismissed but, on the facts and in the circcstances of the case, I would direct that the gar should bear their own costs throughout.

Ramaswami, C.J:— I agree.

IE/F.

31. Appeal dismissed.