Kulawant Sahay, J.In December 1922 several rent decrees were obtained by the respondent against the tenants. The first execution of the decrees was taken out in April 1924 but it was dismissed for default on 15th December 1924. The second application for execution was made on 19th December 1925, that is, more than a year after the first execution. Under Order 21, Rule 22, the application being made more than a year after the date of the decree, a notice was necessary to be issued upon the judgment debtors requiring them to show cause why the decree should not be executed against them. It appears that notice under Order 21, Rule 22 was issued against the judgment-debtors and the property was sold on 26th July 1926. On 4th December 1926 the sale was set aside on applications.

2. Under Order 21, Rule 90 filed on behalf of the judgment-debtors. The chief reason why the sale was set aside was that notice under Order 21, Rule 22 had been suppressed and that other notices had not been properly served. The Court, on 4th December 1926, after setting aside the sale, directed the decree-holder to take proper steps for further execution on 6th December 1926. The order-sheet in one of the cases, namely, in the case in which Zamiruddin was the judgment-debtor, contains an order directing the decree-holder to take steps by Monday 6th December 1926. The order-sheet in the other cases is to the effect that the decree-holder should take necessary steps for issue of fresh sale proclamation by 6th December 1926. Fresh sale proclamations were issued and the property, namely, the holding in each case was again sold on 5th February 1927 and the judgment-debtors again made an application for setting aside the sale.

3. The learned Subordinate Judge found that there was no illegality or irregularity in the execution proceedings or in the conduct of the sale and that there had been no inadequacy of price and he accordingly dismissed the application for setting aside the sale. The question as regards the notice under Order 21, Rule 22 was again raised by the judgment-debtor and the learned Subordinate Judge found that the notice had been issued and properly served. It will be noticed that this finding was directly contrary to the finding arrived at in the previous proceedings for setting aside the sale, in which the learned Subordinate Judge had held that although the notice under Order 21, Rule 22 had been-issued it was suppressed but not served.

4. The matter went in appeal before the District Judge. The learned District Judge held that the finding in the previous application for setting aside the sale to the effect that the notice under Order 21, Rule 22 had been suppressed would operate as res judicata and it was not open to the Subordinate Judge in the present proceedings to hold that the notice under Order 21, Rule 22 had been served. He was, however, of opinion that the service of notice under Order 21, Rule 22 after setting aside the first sale was dispensed with by the Court under the provisions of Sub-rule 2 of Rule 22 and that therefore the sale was not a bad sale on account of non-issue of a notice under Order 21, Rule 22. As regards the question of irregularity and illegality and the inadequacy of price the learned District Judge agreed with the Subordinate Judge and he dismissed the appeals. The judgment-debtors have therefore come up in second appeal.

5. The point argued by the learned advocate on behalf of the appellants is that the entire proceeding in execution was without jurisdiction inasmuch as the notice under Order 21, Rule 22 had not been served upon the judgment-debtors. Now, the finding of the learned District Judge, which is a finding of fact and must be accepted, was that a notice under Order 21, Rule 22 was issued but suppressed. The first sale was held on 26th July 1926. That sale was set aside on 4th December 1926 on the ground that the notice under Order 21, Rule. 22 had been suppressed. After setting aside the sale, the Court made an order directing the decree-holder to take further steps in execution and in the same execution-proceedings fresh sale proclamations were issued and the property was sold. The contention that after the setting aside of the sale on 26th July 1926 the decree-holders ought to have taken out fresh notice under Order 21, Rule 22 is in my opinion not sound. It was a continuation of the same execution proceedings in which a notice under Order 21. Rule 22 had already been issued.

6. It is next contended that a sale without the service of the notice under Order 21, Rule 22, was without jurisdiction. In ordinary circumstances it would be so, and there are authorities to the effect that a sale held without the service of the notice under Order 21, Rule 22 is a sale held without jurisdiction. In the present case, however, the facts are that a notice was issued but suppressed.

7. Thereafter the judgment-debtors appeared and raised objections to the execution of the decree as well as to the validity of the sale. Those objections were heard and disposed of by the Subordinate Judge and thereafter he directed the decree-holder to take further steps. Under the circumstances there is no sense in insisting on the issue of a fresh notice under Order 21, Rule 22 and the service thereof requiring the judgment-debtors to show cause why execution should not proceed. The judgment-debtors had appeared in Court and such objections had been taken by them. There was no necessity for issuing and serving fresh notice under Order 21, Rule 22 before holding the sale. All that Order 21, Rule 22 requires is that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed. If a notice is issued but not served and yet the judgment-debtors appear in Court and raise objections, the object of Order 21, Rule 22 is attained. In my opinion the fresh issue of a notice under Order 21, Rule 22 after the setting aside of the first sale was not necessary and the notice issued before--the sale of 26th July 1926 was sufficient in order to give the Court jurisdiction the hold the sale, especially when the judgment-debtors had appeared and taken all the objections that they could take to the execution proceedings.

8. The learned advocate for the appellant has argued that the District Judge was wrong in holding that the failure to record reason for not issuing a notice under Order 21, Rule 22 as prescribed by Sub-rule 2 amounted to an illegality and not an irregularity and therefore the sale ought to be set aside. In my opinion the question, as to whether the notice was dispensed with under Sub-rule 2 does not arise in the present case, because a notice had actually been issued and although not served, yet the judgment-debtors had notice of the execution and appeared in Court. There was no dispensing with the issue of the notice under Sub-rule 2, Rule 22.

9. Under the circumstances I am of opinion that the order of the learned District Judge is correct and these appeals must be dismissed with costs.

Macpherson, J.

I agree.