1. This is an appeal against an order of the Subordinate Judge of Chapra rejecting a petition of objection filed under section 47 of the Code of Civil Procedure in an execution case. The following are shortly the facts of the case:--

On the 29th August 1902 one Ramsunder Sahi, who was commonly known as the Lal Saheb of Manjha, borrowed Rs. 3,40,000 from the estate of Kumar Sirish Chandra Sinha of Paikpara near Calcutta by mortgaging his estate. At that time the Paikpara estate was in the hands of a Receiver, Mr. Mitter. On the 6th November 1902 Kumar Sirish Chandra Sinha died leaving a Will, which had been executed by him on the 18th June 1902. By this Will his mother, Rani Devendra Balla Dassi and Kumar Satish Chandra Sinha were appointed executors. On the 24th July 1903 the executors applied for probate of the Will but the Receiver continued in possession. On the 7th April 1904 Mr. Mitter was discharged from the Receivership and one Mr. Haider was appointed. On the 13th September 1907 Mr. Halder sued on the mortgage. On the 26th May 1903 he obtained a preliminary decree. On 1st December 1908 he applied, under section 89 of the Transfer of Property Act, for an order absolute for sale of the mortgaged property. The order absolute was passed on the 2nd January 1909 and on the 27th January 1909 the first application for execution was filed. This was registered as Case No. 14 of 1909. On the 18th February 1909 a notice under Order XXI, rule 66, of the Code of Civil Procedure was served and received by the Am-Mukhtear of the judgment debtor. Subsequently on the 22nd February 1909 the decree-holder asked for time to make substitution in place of Lal Saheb, the judgment-debtor who had died. Time was allowed and on the 5th March 1909 the decree-holder applied to substitute Hira Saheb, the brother of Lal Saheb deceased. The order of substitution was made on the 13th March 1909 and on the same date a notice was ordered to be issued to Hira Saheb under Order XXI, rule 66. It was then discovered that Lal Saheb had left two Wills, one in favour of Partap Sahi, minor son of Sheo Partap Sahi, and another in favour of Keshwa Sevendra Sahi, minor son of Hira Saheb, and that probate of both Wills had been applied for. The decree-holder, therefore, asked for substitution of both these minors and their fathers. Substitution was made but no guardian was appointed for the minors, and again notices under Order XXI, rule 22, were ordered to issue. These notices were served and subsequently notices were issued under Order XXI, rule 66. Hira Saheb and his son did not appear. On the 6th August 1909 the Receiver of the judgment-debtor's estate made a payment of Rs. 6,039 to the decree-holder and on 21st August 1909 Sheo Partap Sahi objected to the valuation. A miscellaneous case was started and the proceedings in the execution case were stayed until the hearing of this objection. On the 9th October 1909 the objection petition was dismissed and the execution case was also disposed of, another petition being ordered to be filed. The matter of the Will was amicably settled and probate was ordered by the District Judge to be granted to Hira Saheb as guardian of the minor appellant on 28th September 1909, but it was never taken out.

2. On the 15th November 1909 a second application for execution was made by the Receiver of the decree holder's estate. The application was made against Hira Saheb for himself and as guardian of his minor in, but no guardian was actually appointed by the Court. On the 20th November 1909 there was an order for issue of notices under Order XXI, rule 66, and on the 1st December 1909 an application was made by the decree holder that Rs. 2,000 had been paid by the Receiver of the judgment-debtor's estate. The sale proclamation was then issued and the 7th February 1910 was fixed for the sale. Meanwhile Mr. Halder died and an application was made on behalf of the decree-holder for time to make substitution. Hira Saheb objected to time being granted, and eventually the following order was passed by the Court:--"The present case should be disposed of, leaving it to the legal representative to make another application for execution "

3. By this time another Receiver Mr. Mozumdar had been appointed and on the 18th March 1910 he made another, the third, application for execution against Hira Saheb for self and as guardian of the minor, which was registered as Case No. 44 of 1910. Again no guardian was appointed. The usual notices were served and the 2nd May 1910 was fixed as the date for the sale. Before the date fixed for the sale the decree-holder asked for permission to bid. This was granted but at the same time Hira Saheb who had appeared on his own behalf filed a petition of objection to the execution proceedings on the ground that there was a mistake in the list of properties. The decree-holder asked to be allowed to amend the execution petition, but this was refused and on the 28th May 1910 the execution application was dismissed, the decree-holder being directed to make a fresh application.

4. On the 6th August 1910 Mr. Mozumdar made the fourth application for execution, which was registered as Case No. 107 of 1910. Again no application was made for the appointment of a guardian and no guardian was appointed by the Court. The 17th November 1910 was fixed for the sale, tut on that date Hira Saheb filed an objection under section 47 of the Code of Civil Procedure and the execution case was adjourned sine die, The decree-holder then made an application, stating that the Receiver of Lal Saheb's estate had paid in Rs. 5,000 on the 22nd November 1910 on account of the decree, and on the 7th January 1910 the execution case was disposed of. The miscellaneous case was taken up and disposed of on 29th May 1911.

5. On the 14th June 1911 Mr. Mozumdar made the fifth application for execution, which was registered as No. 118 of 1911 and a date was fixed for the return of the notices under Order XXI, rule 66, but on that date the minor filed an objection under section 47 of the Code of Civil Procedure through Hira Saheb, his father, and his guardian objected to himself (Hira Saheb) being made a party. This application was allowed and on the same date the execution case was dismissed. An appeal was filed to the High Court against the order dismissing the execution case and it was ordered to be revived and proceeded with. The record was received back in the lower Court on the 16th January 1912 and the 9th March 1912 was fixed for hearing the objection. The objection was disallowed and the 3rd Jane 1912 was fixed for the sale. Subsequently the decree-holder certified payment of Rs. 4,485. The execution case was then taken up and the sale took place on the 11th June 1912, the properties being purchased by the Maharaja of Hathwa. There was an application to set aside the sale, which was rejected. An appeal was preferred to the High Court and the order of rejection was set aside. The case was then re heard by the Subordinate Judge, who set aside the sale on the 31st May 1916.

6. On the 11th July 1916 the 6th application for execution was presented This application was presented by Rani Devendra Balla Dasi, who is the executrix of the estate of Kumar Sirish Chandra Sinha. She stated that the persons against whom the decree was sought to be executed were "Babu Keshavendra Sahi, minor son of Babu Hari Harendra Sahi alias Hira Saheb deceased, as the sole legatee under the Will of the original mortgagor judgment-debtor, Babu Shaym Sevendra Sahi alias Lal Saheb deceased (of which Will probate was ordered to issue to the said Hira Saheb but not actually issued or taken out) and also as one of the heirs of his father, the said Babu Harendra Sahi alias Hira Saheb deceased, through his said minor's mother and guardian Musammat Dulhin Birja Koer, who was appointed guardian by order of the High Court in Miscellaneous Appeal No. 311 of 1913." There are also two others against whom the application is directed, namely, the sons of Hira Saheb. An objection to this execution was made on behalf of Keshavendra Sahi under section 47 of the Code of Civil Procedure, in which the points urged before the Subordinate Judge were--

"(1) That there is no final mortgage decree and the decree stated in column 3 cannot be legally put into execution.

"(2) That the execution petition is not according to law.

"(3) That Rani Devendra Bala Dassi is not competent to file the application for execution, as she has not disclosed the right by which she makes the application and she has not taken any step to get herself substituted in place of the previous decree-holder.

"(4) That the present execution is barred by limitation as against the petitioner, he not having been made a party in the previous execution so that he is not bound by anything done or any order passed in those cases.

"(5) That Babu Chander Sekhar Prasad Singh, the Receiver of the mortgaged property, not being made a party to the execution case, cannot proceed.

"(6) That the decree-holder is not entitled to get the costs of the previous execution cases."

7. The learned Subordinate Judge by his judgment of the 9th December 1916 has overruled all the objections and directed the execution to proceed. The minor judgment debtor has appealed to this Court.

8. The first point taken in appeal is that the execution proceedings are illegal, in as-much as there is no final decree for the sale of the mortgaged properties as required by Order XXXIV, rule 5, of the Code of Civil Procedure, and hence there is no decree to be executed. The mortgage decree was passed on the 25th of May 1908 under section 88 of the Transfer of Property Act (IV of 1882) directing the amount due on the mortgage bond with costs and interest to be paid within six months and "on default the mortgaged properties to he sold for the realisation of the sum," The sum specified in the decree was not paid within the time fixed for payment and on the 1st December 1908 the decree-holder filed an application, praying that under the provisions of section 89 of the Transfer of Property Act an order absolute for the sale of the mortgaged properties might he made. On the same date the Court directed notice to issue on the judgment-debtor to show cause why the decree nisi should not be made absolute and fixed the 2nd January 1909 for disposal. This notice was served upon the judgment-debtor and on the 10th December 1908 the Court accepted the service as sufficient.

9. On the 2nd January 1909 the following order was passed on the order sheet in Mortgage Suit No. 235 of 1907: "Defendant is absent though served with a notice, which seems to have been received by his Mookhtear. The decree nisi will now be made absolute with costs." (P. 195.) The Court at the same date made the following endorsement in its own hand on the certified copy of the decree filed by the judgment-debtor. Decree nisi made absolute, vide order dated 2nd January 1909, with costs, Rs. 2-8-9." This order was copied by a clerk of the Subordinate Judge's office on the original decree and signed by him: this copy does not bear the signature of the Court.

10. Mr. Hasan Imam on behalf of the judgment-debtor contends that as the present Code of Civil Procedure had come into force on the 1st January 1909 and as amongst other sections of the Transfer of Property Act, sections 88 and 89 were repealed (Schedule V of the Code of Civil Procedure) and in lieu of them Order XXXIV, rules 3 to 5, of the Civil Procedure Code were substituted, a decree absolute as required by Order XXXIV, rule 5, should have been prepared, and that without such a decree the property could not be sold. He urges that the amendment prescribed a new rule of procedure, and that, therefore, the Court had no jurisdiction to make an order under section 89 which had been repealed by the Code of Civil Procedure. Clause 2 of rule 5 requires that when the payment mentioned in a preliminary mortgage-decree under rule 4 is not made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with as mentioned in rule 4 of the same order. This rule of the Code of Civil Procedure then made this change, that while under section 89 of the Transfer of Property Act the Court was only required to pass an order absolute for sale of the mortgaged property, rule 5 requires the Court to make a "decree" for sale of the mortgaged property. This amendment was due to a Conflict of decisions in the different High Courts as to whether the right of the decree holder to execute the decree accrued after the passing of the preliminary decree under section 88 of the Transfer of Property Act, or after an order absolute under section 89 of the Act and also as to whether the period of three years' limitation for the execution of the decree should run from the date of the preliminary decree or from the date of the order absolute. In support of his contention that a final decree is necessary in this case, Mr. Hasan Imam has relied on the case of Mahant Krishna Dayal v. Sakina Bibi 34 Ind. Cas. 27 : 1 P. L. J. 214 : 20 C. W. N. 952 : 2 P. L. W. 370; In that case the decree absolute under section 89 of the Transfer of Property Act was made long before the new Code of Civil Procedure came into force, the application for execution of the decree was made 12 years after the date of the decree, and it was held that the case was governed by the new Code of Civil Procedure, under section 48 of which the execution was barred. This case has no application to the present case.

11. It has not yet been definitely settled whether in cases in which the preliminary decree has been passed under section 88 of the Transfer of Property Act, an application made for a decree absolute is governed by the Civil Procedure Code or not. In the case of Madhab Moni Dasi v. Pamela Lambert  6 Ind. Cas 537 : 87 C. 796 : 15 C. W. N. 337 : 12 C. L. J. 328. Mukherji, J., was of opinion that no final decree need be prepared under the new Code of Civil Procedure in order to enforce the preliminary decree passed under section 88 of the Transfer of Property Act. In Amolak Chand v. Sharat Chandra  11 Ind. Cas. 943 ; 38 C. 913; 16 C. W. N. 49 Sir Lawrence Jenkins considered this case but thought that the point did not directly arise, and as there was no necessity to decide the point in the case before him the question was left open. It is also unnecessary for us in this case to consider the point, because the proceeding to make the decree absolute was pending at the time when the Code of Civil Procedure came into force, and the contention of Sir Rashbehari Ghose on behalf of the decree-holder respondent is that this being so and a notice of the application for an order under section 89 having been served on the original mortgagor, the repeal of section 89 does not affect the proceedings pending under that section. This contention is based on section 6 of the General Clauses Act and it appears to us that it must prevail.

12. In the case of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 11 C. L. R. 113 : 8 I. A. 123 : 4 Sar. P. C. J. 249 : 4 Ind. Deo. (N.S.) 32 (P. C.). their Lordships of the Judicial Committee held that an application for execution of a decree is an application in the suit in which the decree has been obtained, and that nothing contained in section 2 or in part 2 of Act IX of 1871 shall apply to suits instituted before the 1st April 1873, and hence nothing contained in Schedule II of that Act extended to an application for execution of a decree in a suit instituted before that date. In Umesh Chunder Das v. Chunchun Ojha 15 C. 357 : 7 Ind. Dec. (N.S.) 822. it was held that the mortgage was executed before the Transfer of Property Act came into force and when Regulation XVII of 1806 was in force and notice for foreclosure had been served in a proceeding under that Regulation, the proceeding already commenced was saved by section 6 of the General Clauses Consolidation Act I of 1868 and the new procedure would not apply. Mitter, J., further held that the mortgagee had obtained not only an inchoate right, that is, a mere chance which might be developed into a substantive right, but had acquired a vested right as a mortgagee, and, therefore, the new Transfer of Property Act would not destroy that right. This was also the view taken in the case of Baij Nath Pershad Narain Singh v. Moheswari Pershad Narain Singh 14 C. 451 ; 7 Ind. Dec. (N.S.) 300. and in Mohabir Pershad Narain Singh v. Gungadhur Pershad Narain Singh  14 C. 599 : 12 Ind. Jur. 26 : 7 Ind. Dec. (N.S.) 397 and also in the case of Madhab Moni Dasi v. Pamela Lambert 6 Ind. Cas 537 ; 87 C. 796; 15 C. W. N. 337, 12 C. L. J. 328., where an application for an order absolute under section 89 of the Transfer of Property Act was made on the 9th September 1908 and was pending at the time when the new Code of Civil Procedure came into force.

13. In the present case the application to make the decree absolute was made before the new Civil Procedure Code came into force, and the right of the decree-holder to sell had already accrued by the default of the judgment debtor to pay the decretal amount within the time fixed in the preliminary decree of the 25th May 1908. The right to apply for the sale of the property had become vested in the decree-holder and notice of the application had been served. The order absolute was an order made in continuation of the mort-gage suit which had been instituted before the Civil Procedure Code came into force and of the preliminary decree which had been made prior to the passing of that Act. The proceeding for order absolute was therefore, a pending proceeding and was governed by the Transfer of Property Act: This being so, the decree which was to be executed was the preliminary decree of the 26th May 1908, which the order of the Court dated the 2nd January 1909 made absolute and the proceedings being under section 89 of the Transfer of Property Act, no final decree was necessary.

14. The learned Subordinate Judge, in his judgment on the application made to set aside the sale, has said that the order absolute passed in this case was in accordance with the usual practice in cases under section 89 of the Transfer of Property Act. There is no reason to doubt that this is so, and in fact it would appear that in cases under section 89 of the Transfer of Property Act even an order absolute is unnecessary and it is sufficient that there is an order for sale passed on an application of the decree-holder. This was the view in the cases quoted as Phul Chand Ram v. Narsingh Pershad Misser 28 C. 73., Gunindra Prosad v. Baijnath Singh 21 M. 695., Venkatara v. Chinna Ramayya 21 M. 695. and Appa Rao v. Krishna Ayyangar  25 M. 537.

15. Apart from this, however, it appears to as that it is not now open to the appellant to object to the decree which is sought to be executed. The order absolute for the sale of the properties was made during the lifetime of the original judgment-debtor, Lal Saheb, and with notice to him. No objection was taken by him and the appellant, as his legal representative, cannot, therefore, question the validity of the order made.

15. Further, the present application is the sixth application which has been made in these execution proceedings and in each of them notices have been served on Hira Saheb for himself and as guardian of the present appellant, and no objections have been taken either to the form of the decree or that a final decree was not prepared. Even in the petition of the minor through his mother as guardian, dated the 10th July 1912, the decree was not attacked. Before the Subordinate Judge, however, the matter was pressed and was decided against the appellant by his separate judgment of the 25th January 1916. No appeal was preferred against this order of the Subordinate Judge to the High Court. In the case of Mungul Pershad Dichit v. Grija Kant Lahiri  8 C. 51 : 11 C. L. R. 113 : 8 I. A. 123 : 4 Sar. P. C. J. 249 : 4 Ind. Deo. (N.S.) 32 (P. C.)., which has been followed in a very long series of cases by all Courts in India, their Lord ships of the Privy Council in a judgment which was delivered by Sir Barnes Peacock hold that although the execution of a decree may have been actually barred by time, yet, if an order for such execution has been regularly made by a competent Court having jurisdiction to try whether it was barred by time or not, such order, although erroneous must, if unreversed be treated as valid. This principle has also been recognised by their Lordships of the Judicial Committee in the case of Malkarjun v. Narhari  25 B. 337; 5 C. W. N. 10; 2 Bom. L. R. 927; 27 I. A. 216; 10 M. L. J. 363; 7 Sar. P. C. J. 739 (P. C.), where a sale had taken place after the notice having been wrongly served upon a person who was not the legal representative of the judgment-debtor, it was held that the sale was not a nullity and cannot be treated as invalid as the Court had power to decide wrongly as well as rightly, In the case of Ramjas v. Sheo Prasad 28 A. 193 : 2 A. L. J. 640 : A. W. N. (1905) 241; the notice of an application under section 89 was issued upon the mother as guardian of the minor judgment-debtor on the 21st November 1912, but was returned unserved as the mother was dead. It was held that so long as the order absolute subsists, it is enforceable and its operation cannot be impugned. If by any reason the order was defective, the remedy of the appellant was to get it set aside in accordance with law, but until it is set aside its validity cannot be questioned in execution proceedings. In the case of Moti Ram v. Banke Lal 47 Ind. Can. 954 : 16 A. L. J. 685. it was held that it was not open to the plaintiff to question the validity of a final decree made under Order XXXIV, rule 5, on the ground that that decree did not agree with the preliminary decree passed under rule 4 of that Order, when that objection was not taken by him when the final decree was passed. In the case of Gunindra Prasad v. Baijnath Singh 31 C. 370.it was held that a mortgagee is precluded from raising the objection that the sale of the mortgaged property in execution of the decree in the mortgage suit is invalid, by reason of the decree nisi in that suit not having been made absolute if such objection is not raised at an earlier stage of the proceedings. The reason for these decisions is that litigants should be compelled to make all objections that they may have to make at the earliest opportunity; they should not be allowed to make objections piecemeal and thus interminably prolong litigation. In the present case applications for execution were admitted and no objection was taken regarding the decree and orders having been regularly made on these applications by a competent Court--it is not now, in our opinion, open to the judgment-debtor to contend that there is in fact no decree which can be executed.

16. The next point which has been urged is that Rani Devendra Bala Dassi is not competent to file the application for execution. The first contention in regard to this is that by the Will of Sirish Chandra Sinha the Rani has no interest in the property, because his eldest son is the only surviving son and that the property went to him under the Will on his attaining the age of 18. This interpretation of the Will does not appeal to us, and there is not sufficient evidence to enable us to decide the question of the eldest son's age. It is also not at all certain that the youngest son is dead. Neither of these points was raised in the lower Court nor were they enquired into, and it is unnecessary to go into them here, because the Rani was appointed executrix by the order of the High Court along with Suresh Chandra Sinha on the 24th July 1903. Suresh died on the 30th January 1908, and she became the sole executrix of the Will and the whole of the property vested in her. The High Court by its order of the 20th November 1912 discharged the Receiver of the estate and made it over to the Rani Devendra Bala Dassi as the sole executrix. On the 6th January 1913 she made an application to be substituted in place of Mr. P.K. Mozumdar as executrix of the estate and the Court accordingly ordered the substitution to be made. Under section 112 of the Probate and Administration Act a legatee cannot take until the executor has assented to the payment of the legacy This the Rani has never done, so that not only was she competent to make this application but at the time it was made being executrix she was the only person who was entitled to execute the decree.

17. The next point which has been taken by Mr. Hasan Imam is in regard to limitation, and his first contention is that as it was not until August 1916 that Dulhin Birja Koer, the minor judgment debtor's mother, was appointed guardian, that is, after the sixth execution application had been made, the minor was not represented until then and this being so, the application has been made more than three years from the date of the decree and is barred by limitation. The facts in regard to this matter are shortly as follows:--

During the pendency of the first exemption proceeding the decree holder discovered that Lal Saheb had died and that he had executed two Wills, one in favour of Sheo Partap Sabi and the other in favour of the present appellant, Keshwarendra Sahi. On learning this he applied for substitution of the names of both the minors and their fathers for the themselves and as guardian of their minor sons, stating that the present appellant was a minor and was under the guardian-ship of his father and lived with him. The Court ordered substitution to be made as prayed and notice under Order XXI, rule 22, to issue. The notice was as a matter of fact served, as was held by the Court in its order of the 17th April 1909. This execution application was disposed of and subsequently, when the dispute regarding the Wills had been settled in favour of Keshwarendra Sahi, the decree-holder made a second application for execution against Hira Saheb or himself and as guardian of his minor son, the present appellant This course the decree holder followed in all subsequent applications for execution including the fifth. In none of these cases, however, was there any order of the Court appointing Hira Saheb as guardian ad litem. The question for consideration is whether under these circumstances the minor was legally represented by Hira Saheb in the execution proceedings. There is no contention that Hira Saheb did not act as guardian of the minor throughout all these execution proceedings. It was held, however, by the Calcutta High Court in its order at pages 4, 5 and 6 of the paper-book that in the 5th execution proceeding he had filed the petitions dated the 4th and 11th June 1912, in which he applied only on behalf of himself without making the minor a party and that in these applications he acted against the interest of the minor. The facts regarding these petitions have been very fully discussed in the judgment of the learned Subordinate Judge dated the 15th January 1916/31st May 1916, in which he directed that the sale to the Maharaja of Huthwa should be set aside. The sale in that case was fixed for the 3rd June 1912. This date was a holiday, so the matter came up on the following day. On that date Hira Saheb applied to the Court on his own behalf, without making the minor a party, asking for time in order to enable the Maharani of Huthwa to get permission from the Calcutta High Court to purchase the property at the execution sale. This permission was obtained and on the 11th June 1912, which was the date of the adjournment of the sale, the sale actually took place On that Hira Saheb again, without joining the minor, made a petition to the Court asking that the property which had been advertised in 48 lots should be sold in one lot. This was done and the property was purchased by the Maharajah of Huthwa. On the 10th July 1912 an application was made on behalf of the minor by his mother to have the sale set aside. In this application she stated that the minor was properly described to be under the guardianship of his father and she admitted that the father acted as guardian throughout. Her only charge against Hira Saheb was that he was not protecting the interest of the minor by applying for setting aside the sale. The reason suggested in her application was that the eldest son of Hira Saheb was married to the daughter of the Maharani of Hathwa, the auction-purchaser, but the marriage is said to have taken place in May 1910, long after several executions of the decree. This application by the minor's mother was refused, but on appeal to the High Court the order was set aside and the matter was referred to the Subordinate Judge for re-hearing. For reasons given in his judgment, the learned Subordinate Judge found that there had been irregularity in the matter of sale which had caused great loss to the minor, and, as has already been said, he set aside the sale. In his judgment he found that Hira Saheb acted against the interest of the minor in making the petitions of the 4th and 11th June 1912.

19.We are not satisfied that the learned Subordinate Judge has taken a correct view of this case and Hira Saheb's conduct is capable of an entirely different construction. A very simple explanation of Hira Saheb making the applications on the 4th and 11th June 1912 in his own name and not on behalf of the minor is that he did not wish to bind the minor. After the sale when Hira Saheb found that the property was purchased by the Huthwa Raj at 13 times the net income, which was a breach of the arrangement that the purchase should have been 25 times the net income, Hira Saheb negotiated with the Huthwa Raj to give up the purchase and with the decree-holder to take a usufructuary mortgage of the entire property by advancing Rs. 44,000 over and above the amount of the decree. The Maharani of Huthwa, by a petition to the Court, agreed to give up her purchase. From this it would appear that Hira Saheb was really not acting against the interests of the minor. It is also significant that during the hearing of the application for setting aside the sale the allegation of fraud against Hira Saheb was admitted to be not proved, and the learned Subordinate Judge accepted this. We ourselves are of opinion that all that can be urged against Hira Saheb in regard to the sale matter is that he committed an error of judgment in making the applications of the 4th and 11th June 1912.

18. Even, however, if we accept that in regard to the sale Hira Saheb acted contrary to the interest of the minor, it has nowhere been suggested that before the 4th June 1912 he acted contrary to his interest, nor can it be suggested that he had any interest adverse to him. He applied for and obtained an order for probate of the Will of Lal Saheb for the minor. It is true that he did not actually take out the probate, probably because he did not wish to pay the fees which were heavy. By getting the grant of probate he renounced whatever interest be may have had as brother of Lal Saheb in the property, and throughout the execution proceedings he, as has been found by the learned Subordinate Judge, "fought tooth and nail to thwart the decree-holder." There can be no doubt on this point. Hira Saheb from time to time made various objections to the execution of the decree, all in the interest of the minor. In the 5th application he filed a petition on behalf of the minor dated the 8th July 1911, expressly stating that he had no interest in the estate of Lal Saheb, that the entire estate belonged to his minor son, and that he himself ought not to be made a party to the execution proceedings. The Court allowed the petition and on appeal being made to the High Court by the decree bolder Hira Saheb appeared on behalf of the minor and contested that appeal. Taking the worst view of the case, therefore, up to the 4th June 1912 Hira Saheb not only had no adverse interest to the minor but he was doing everything in his power to assist the minor in resisting the claims of the decree-holder. Moreover, Hira Saheb was the obvious guardian of the minor, being not only his father but his executor by implication under the Will. It is true that Hira Saheb was never appointed guardian ad litem by the Court and that under the Code of Civil Procedure the Court is bound to appoint a proper person to act on behalf of a minor, but it has been held in a large number of cases that, although no formal appointment has been made, Where the Court by its action has given its sanction to the appearance of a person as a guardian, the absence of a formal order of appointment is not necessarily fatal to the proceedings. This was the view taken in the following cases, Midnapore zamindari Company v. Gobinda Mahto 8 C. L. J. 31., Krishna Pershad Singh v. Gosta Behari Kundu 5 C. L. J. 434., and by their Lordships of the Privy Council in the cases of Hari Saran Moitra v. Bhubaneswari Debi  16 C. 40 : 15 I. A. 195 : 12 Ind. Jur. 373 : 5 Sar. P. C. J. 198 : 8 Ind. Dec. (N.S.) 27 and Walian v. Banke Behari Perehad Singh  30 C. 1021; 30 I. A. 182; 7 C. W. N. 774; 5 Bom. L. R. 822; 8 Sar. P. C. J. 512 (P. C.). In this last case in which the law has been very fully discussed, their Lordships of the Privy Council set aside a decree of the Full Bench of the Calcutta High Court reported as Suresh Chander Wum Chowdhury v. Jagut Chunder Deb Chowdhrani 14 C. 204 ; 7 Ind. Dec. (N.S.) 135. Mr. Hasan Imam for the respondent has in his argument referred to the judgment of the Calcutta High Court at pages 4, 5, and 6 of the paper-book, by which the matter of setting aside the sale of the 11th April 1916 was remanded to the learned Subordinate Judge for further hearing. In that judgment the learned Judges said that the minor was not represented in the petition of the 4th and 11th of June 1912, and they made some further remarks which might suggest that they held that the minor had not been represented in the execution proceedings at all. This cannot be so, however, because if they had intended to hold that the minor was not represented in the execution proceedings at all, the sale would have been void so far as the minor was concerned and they would not have remanded the case for re-hearing. It is, therefore, clear that there is no finding of the learned Judges in that case that the minor was not represented in the execution proceedings. All that they intended to hold was that be was not represented in the applications of the 4th and 11th June 1912. Further, Mr. Hasan Imam has relied in support of his proposition that the minor was not represented on the cases reported as Rashid-un-nisa v. Muhammad Ismail Khan  3 Ind. Cas. 864; 31 A. 572; 13 C. W. N. 1182; 10 C. L. J. 318; 6 A. L. J. 822; 11 Bom. L. B. 1225; 6 M. L. T. 280; 19 M. L. J. 631; 36 I. A. 168 (P. C.)., Hanuman Prosad v. Muhammad Ishaq 28 A. 137 A. W. N. (1905) 229 : 2 A. L. J. 615., Partab Singh v. Bhabuti Singh 21 Ind. Cas. 288 : 35 A 487 :  17 C. W. N. 1166 : 25 M. L. J. 492 : 11 A. L. J. 901 : (1913) M. W. N. 785 : 14 M. L. T. 299 : 16 O. C. 247 : 18 C. L J. 384 : 15 Bom. L. R. 1001  40 I. A. 182 (P. C.)., Singaravelu Pillai v. Murugesa Pillai 12 Ind. Cas. 69. and Purna Chandra Kumar v. Bejoy Chand18 Ind. Cas. 859 ; 17 C. W. N. 549; 18 C. L. J. 18. In the case reported as Rashid-un-Nisa v. Muhammad Ismail Khan  3 Ind. Cas. 864; 31 A. 572; 13 C. W. N. 1182; 10 C. L. J. 318; 6 A. L. J. 822; 11 Bom. L. B. 1225; 6 M. L. T. 280; 19 M. L. J. 631; 36 I. A. 168 (P. C.)., above referred to, a married woman was acting as guardian without the appointment of the Court. As a married woman was at that time incompetent to represent a minor, the case has no bearing on the present case. In the cases of Hanuman Prasad v. Muhammad Ishaq 28 A. 137 : A. W. N. (1905) 229 : 2 A. L. J. 615., Partab Singh v. Bhabuti Singh 21 Ind. Cas. 288 : 35 A 487 : 17 C. W. N. 1166 : 25 M. L. J. 492 : 11 A. L. J. 901 : (1913) M. W. N. 785 : 14 M. L. T. 299 : 16 O. C. 247 : 18 C. L J. 384 : 15 Bom. L. R. 1001 :  40 I. A. 182 (P. C.). and Singaravelu Pillai v. Murujesa Pillay  12 Ind. Cas. 69., above referred to, the guardian who acted had an adverse interest to the minor and acted adversely to the interest of the minor. In the case of Purna Chandra Kumar v. Bejoy Chand  18 Ind. Cas. 859 ; 17 C. W. N. 549; 18 C. L. J. 18. their Lordships held that the minor plaintiff, who was not properly represented in the suit, would be bound by the decree if he had any interest in the Patni during the period for which the rent decree was obtained and in order to ascertain that, their Lordships remanded the case to the Court below. These cases are clearly distinguishable from this case and from the case reported as Walian v. Banke Behari Pershad Singh 30 C. 1021; 30 I. A. 182; 7 C. W. N. 774; 5 Bom. L. R. 822; 8 Sar. P. C. J. 512 (P. C.)., in which the principles which must govern the present case are laid down. The minor was, therefore, properly represented by his father certainly up till the date of the application made on the 4th Jane 1912 and in our opinion throughout the proceedings, and the omission of a formal order to appoint him as such under Order XXXII of the Code of Civil Procedure will not vitiate these execution proceedings by which the minor is, therefore, bound, particularly as it is not disputed that the minor appellant, as the representative of the mortgagor, is liable for the mortgage-decree.

19. Apart from this, however, on the 8th February 1915 during the pendency of the 5th execution case the High Court directed that the mother should be appointed guardian of the minor and she was allowed to prosecute the application to set aside the sale on his behalf. Subsequently a formal application was made to the Court and she was formally appointed guardian in August 1916 in the present execution. If then there was any defect in the representation of the minor, it was made good as soon as his mother was appointed guardian, and this appointment must be held to relate back to the date of the 5th application for execution made in June 1912. That application itself was within three years of the date of the decree. The minor was, there fore, properly represented and the execution was taken out within time. This was the view taken in Khem. Karan v. Hardayal 4 A. 37 : A. W. N. (1881) 129 : 6 Ind. Jur. 382 : 2 Ind. Dec. (N.S.) 667., Rup Chand v. Dasodha (26) 90 A. 55 : A. W. N. (1907) 290 : 3 M. L. T. 58 : 4 A. L. J. 343 n., Peary Mohan v. Narendra Nath 5 Ind. Cas. 404; 37 C. 229; 14 C. W. N. 261; 7 A. L. J. 125; 7 M. L. T. 63; 11 C. L. J. 220; 12 Bom. L. R. 257; 20 M. L. J. 171; 87 I. A. 27 (P. C.)., Jiwat Dube v. Kali Charan Ram  A. W. N. (1898) 128 : 9 Ind. Dec. (N.S.) 666. and Chhayunnessa Bibi v. Kazi Basirar Rahman 5 Ind. Cas. 532 : 37 C. 399 : 11 C. L. J. 285. There are numerous other cases on this point to which it is unnecessary to refer.

20. The next point urged is that the applications for execution are not made in accordance with law and that the last application is not made in continuation of the previous applications. In support of the contention that the applications are not in accordance with law, Mr. Hasan Imam points to certain defects in drawing up the various applications for execution The defects to which he refers are (1) that the correct date of the decree has not been entered; (2) that all payments which were made under the decree have not been mentioned in the applications; (3) that the properties mentioned in the different applications are not the same; and (4) that the parties are not the same. We are of opinion that there are no material defects in any of the execution applications and we are prepared to agree with the learned Subordinate Judge that the proceedings were all one continuous proceeding, but it is unnecessary to go into this question in detail because the 5th application for execution made on the 14th June 1911 was made within three years of the date of the decree, so that if there are no material defects in the 5th application or the last application and this last application is made in continuation of the 5th application, it is not barred by limitation. It is, therefore, only necessary to deal specifically with defects in so far as they relate to the 5th application for execution and the present application.

21. The first defeat referred to is in regard to the date of the decree. The 5th application gives the date of the decree as the 26th May 1908, that is to say, the date of the preliminary decree. The argument that this date is incorrect has no force because, as we have already held, what was to be executed was the preliminary decree and there was no necessity for any final decree. Apart from this, however, even if there were a mistake in the date of the decree, it can not be considered to be a material defect because there could be no doubt in the mind of the judgment debtor as to the intention of the decree-holder or as to what decree it was intended to execute. That a mistake in the date of the decree is not a material defect was held in Jiwat Dubs v. Kali Charan Ram 20 A. 478 : A. W. N. (1898) 128 : 9 Ind. Dec. (N.S.) 666.

22. The next defect pointed out is in regard to non entry of payments. The payments which had been made towards the decree are not entered at all in the 5th application, but the entry in column 7 is as follows:--

"Rs. 4,65,535 5.9 besides interest which may be found due up to the date of sale according to the calculation of the office at the rate of six per cent per annum."

23. The various payments were all noted in the registers and, as the learned Subordinate Judge has held, in preparing the account the office would certainly consider them in making the calculation and processes would issue for the amount arrived at on such calculation. The fact, therefore, that these payments were not mentioned in the application for execution was not a material paint and could not possibly prejudicially affect any one. We, therefore, agree with the learned Subordinate Judge that the non-entry of previous payments was not a material irregularity which would be fatal to the application

24. The third defect urged is that some of the properties mentioned in the former execution application are not identical with those in the present application. In the body of each of the execution petitions the decree-holder has expressly stated that the properties to be proceeded against are the mortgaged properties, and the schedules refer to these mortgaged properties. It is true that there are some apparent differences in the description of the properties as mentioned in the 5th application and the pre-sent application, but they are not material differences, Some of the villages mortgaged are not traceable and in respect of one of the properties the judgment-debtor had only a limited interest which on his death reverted to the Bettiah Raj. In respect of these properties the decree-holder has made in application, dated the 22nd July 1917, that she does not want to proceed against them. As regards one property Godna Masehri, it is described as Masehri only. This is a trivial mistake. The Court below has overruled the objection in regard to the alight difference in the description of properties, on the ground that the mortgaged properties consist of 150 villages scattered over a large part of the District which bear many Touzi Numbers and the trivial mistakes referred to above have been rectified in the last application. The Subordinate Judge has held that the property as a whole sought to be sold is not different from the property mentioned in the previous applications. With this view we agree. Further, we may add that no objection on the ground of difference of properties was taken in the petition of the 2nd September 1916, either generally or specifically. The objection was taken for the first time on the 21st December 1916 and on the authority of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 11 C. L. R. 113 : 8 I. A. 123 : 4 Sar. P. C. J. 249 : 4 Ind. Deo. (N.S.) 32 (P. C.)., to which we have already referred, we are of opinion that the appellant was precluded from taking this objection. The case of Bihari Lal Misr v. Jagarnath Prasad 28 A. 651; A. W. N. (1900) 152, 3 A. L. J. 845. also supports this view.

25. The last defect urged is that the names of the parties are not the same. The difference is that in the 5th execution, Hira Saheb being dead, his two sons, in addition to the minor appellant have been made parties. The minor appellant has been described as a legatee and as heir of Hira Saheb. The other two sons are described as his heirs It has already been pointed out that probate of the Will of Lal Saheb has not yet been taken out. The decree-holder, therefore, made Hira Saheb as well as his minor son who was mentioned as a legatee in the Will parties to the execution proceedings and when Hira Saheb died, his sons were substituted in his place. It appears to us that this course adopted by the decree-holder was justified, He did not know who the heirs were and in order to make himself secure he brought all the sons of Hira Saheb on to the record. We are supported in this view by the case of Akikunnissa Bibee v. Roop Lal Das  25 C. 133 at p. 136 : 13 Ind. Dec. (N.S.) 90.

26. Lastly, it has been contended that the relief sought in the present application is different from the reliefs sought in the previous applications. There is no force in this contention. The decree-holder has throughout prayed for the sale of the mortgaged properties as required by Order XXI rule 11J --(ii), It was held in the case of Bihari Lal Misr v. Jagarnath Prasad 28 A. 651; A. W. N. (1900) 152, 3 A. L. J. 845. that the decree-holder was entitled to treat the application in continuation of a former one, even when be wanted to proceed to sell different properties. Mr. Hasan Imam has relied upon the case of Virasami v. Athi 7 M. 595 : 8 Ind. Jur. 613 : 2 Ind. Dec. (N.S.) 998. where the relief sought in the first application was for sale and in the subsequent application for the arrest of the judgment-debtor. The reliefs, therefore, were obviously different under Order XXI, rule 11J, sub-clauses (ii) and (iii), and this case has no application to the present case. None of the defeats, then, pointed out to us either singly or taken as a whole are material defects, and without material defects the execution proceedings could not be vitiated. It is hardly necessary to refer to authorities on this point, but a reference may be made to the Full Bench case of Gopal Chunder Manna v. Gasain Das Kalay  25 C. 594, 2 C. W. N. 556; 13 Ind. Dec. (N.S.) 392, Ramayyan v. Kadir Bacha Sahib 31 M 68 : 17 M. L. J. 596 : 3 M. L. T. 254 Mathura Prosad v. Anurago Koer  5 Ind. Cas 579 ; 14 C. W. N 481 and Kalka Dube v. Bisheshar Patak 23 A. 182 : A. W. N (1901) 31.

27. The applications for execution then are not vitiated by any material defect, they must, therefore, be held to have been made in accordance with law. The 6th application is, in our opinion, an application made in continuation of the 5th, and unless the execution applications previous to the 5th application were properly determined and legally disposed of the present application for execution will also be in continuation of those former applications. A reference to the orders disposing of the several applications will show that none of these applications were disposed of in accordance with law. The decree-holder was not guilty of any fault or laches in the prosecution of the executions. She is, therefore entitled to treat the present application in continuation of the former ones in spite of the order of the Court dismissing them. That the last application is in continuation of the 5th application is in accordance with the decision of Chamiar, C. J., in a similar case, Kaniz Zohra v. Syam Kisen 39 Ind. Cas. 89 : 2 P. L. J. 115 : 1 P. L. W. 73 : (1917) Pat. 133. In that case it was contended that the application was neither in form nor in fact an application made in continuation of the 2nd application and that it could not be held that the application was one made in continuation of the previous application, because that had in fact been dismissed. The learned Chief Justice in that case remarked as follows:--

"It seems certain that the Legislature could not have intended that further execution of a decree should be prevented by the fact that execution proceedings remained pending in the Courts for many years. In the present case as the 3rd application was one asking the Court to sell the identical property which had been sold before, I think that we should hold that the application was one made in continuation of the previous application."

28. That case, in so far as this point is concerned, is indistinguishable from the present case and the view taken appears to us to represent the true intention of the Legislature. The same view was also taken in Rameshwar Singh v. Rateshwar Singh 18 Ind. Cas. 84 : 17 C. L. J. 125, Qamar-ud-din Ahmad v. Jawahir Lal 27 A. 334; 2 A. L. J. 397; 1 C. L. J. 381; 9 C. W. N. 601; 15 M. L. J. 258; 32 I. A. 102, 7 Bom L. R. 433; 8 Sar. P. C. J. 810 (P. C.). Mr. Hasan Imam has relied on the ruling reported as Mahant Krishna Dayal v. Sakina Bibi 34 Ind. Cas. 27 : 1 P. L. J. 214 : 20 C. W. N. 952 : 2 P. L. W. 370. In that case a decree was obtained in 1896 and was several times put in execution by the decree-holders. Several applications for execution were made, the last but one being made on the 6th of September 1912. It was dismissed for want of prosecution on the 5th of December 1912 and the last application, which was the one being dealt with, was made on the 18th of July 1913. It was held that the Civil Procedure Code of 1908 did not give a fresh starting point for limitation, and that the execution application was barred as being made more than 12 years from the date of the decree sought to be executed. It was farther held that the application was not one made in continuation of the previous application, because the relief asked for was different from the relief claimed in the previous application and was directed against property which was not touched by the former application. It is also to be noted that the application of the 6th September 1912 was dismissed for want of prosecution and hence the subsequent application could not be in continuation of it; Dhukiram Srimani v. Jogendra Chandra Sen 5 C. W. N. 347. The aforesaid case in the Patna Law Journal has obviously no bearing on the present case. In the present case the last application is clearly an application made in continuation of the 5th application, it is by the same parties for the sale of the same properties, and apart from the fact that it is also in continuation of the earlier applications for execution, both this and the 5th application having been made in accordance with law, the 6th application is not barred by limitation. Even, however, if the 6th application were not in continuation of the 5th application it would net in our opinion, be barred by limitation. The sale held in the course of the 5th application was set aside on the 30th May 1913 and the present application was made on the 11th July 1916. The right to execute the decree against the minor accrued to the decree-holder after the sale was set aside and the limitation would be three years from the date of the order setting aside the sale under Article 181 of the Limitation Act, as held in the case of Raghunath Sahay Singh v. Lalji Singh 23 C. 397 : 12 Ind. Dec (N.S.) 261, It would, therefore, not matter whether the previous execution was defective or not, or whether the present application is in continuation of the 5th execution application or is a fresh application. In either case it would not be barred by limitation. In the case of Abdul Khayar v. Reazuddin 1 Ind. Cas. 311; 13 C. W. N. 521. it was held that even when the sale was set aside in consequence of the decree-holder's fraud and where the fraud was practised by the decree-holder after his first application for execution, the time would run from the date of the setting aside of the sale. The present case is stronger, inasmuch as the sale was set aside not on account of any fraud committed by the decree-holder but on account of the fraud of one of the judgment-debtors in collusion with the auction-purchaser. The Court on the 31st May 1916 set aside the sale and on that very day it dismissed the execution case.

29. It is hardly necessary to notice another argument which has been placed before as in the case, that probate of the Will of Lal Saheb not having been taken out, the minor was not the legal representative of Lal Saheb under section 187 of the Indian Succession Act and Hira Saheb fully represented the estate throughout the execution proceedings. In this view of the case also the whole of the execution proceeding has been regular and the decree-holder can proceed against the present appellant after the death of Hira Saheb, which occurred less than three years before the date of the last application for execution.

30. In the result we dismiss this appeal with costs.

Appeal dismissed.