Jwala Prasad, J.

1. This appeal arises out of an order of the Subordinate Judge, dated the 19th July 1920, rejecting the petition of the judgment-debtor appellant with respect to the execution of the decree obtained by the respondent. The only question involved in this appeal is whether the execution of the decree is barred by limitation. The decree was obtained on the 19th of April 1909 and was put into execution several times. The present execution was levied on the 11th November 1919. This was within three years from the previous execution which was filed on the 10th of April 1917 and disposed of on the 13th of September 1917. Before this execution the decree-holder had levied execution of the decree on the 19th December 1913. That execution was dismissed on the 27th April 1914. The contention of the judgment-debtor is that the execution levied on the 10th April 1917 was barred by limitation and consequently the decree-holder lost all right to execute the decree on the 11th of November 1919. The determination of this question rests entirely upon the construction of an application made by the decree-holder on the 25th April 1914. It is conceded that if that application be in aid of execution, this execution of the decree-holder which commenced on the 10th April 1917 was well within time. On the 6th of April 1914 the Court directed "Notice to issue under O. XXI, R. 66, upon the judgment-debtors fixing 25th, May 1914." The decree holders had put in process-fee and notices for the parties. The return of notice was received, but the notice was not served, at least upon some of the judgment debtors, and consequently the decree holder filed the application of the 25th April 1914 praying that an order may be passed for issue of another notice for service upon the judgment-debtors in the suit and one week's time may be allowed for filing talbana and notice. The learned Vakil on behalf of the judgment-debtors contends that this was an application simply for time to file the talbana, and was not an application praying for issue of notices upon the judgment-debtors. The plain meaning of the application is that it was for both the purposes. The notice upon some of the judgment-debtors had been returned unserved. It was, therefore necessary for the decree holder to apply for the issue of fresh notices upon those judgment-debtors. This interpretation is borne out by the order of the Court which runs in the following words:-"Decree-holders filed a petition for issuing fresh notice and prayed for time to file notice and process-fees. Put up on 27th April 1914 for orders." There is ample authority for the proposition that an application for the issue of notice upon judgment debtors is an application in aid of execution. There can, therefore, be no manner of doubt that the application of the 25th of April 1914 was an application-in-aid of execution Therefore, the application of the judgment-debtor for execution of the decree filed on the 10th of April 1917 was within three years from the application of the 25th April 1914 filed by the decree holder in aid of execution. In this view the present execution of the judgment-debtor is not at all barred by limitation. Supposing, however, that the application of the 25th April 1914 was not in aid of execution, the judgment-debtors did not object to the execution of the decree in 1917 in respect of notice having been served upon them. In the execution of 1917, (No. 234 of 2917) the Court directed notice to issue under O. XXI, R. 22, of the Code of Civil Procedure, fixing the 3rd May 1917. That notice was served upon the judgment-debtors on the 23rd April 1917. The decree-holder has examined the Court peon and the identifier to prove of that notice. The learned Subordinate Judge has accepted that evidence. He has also considered the objection of the judgment debtors as to why the evidence of service of the notice should not be believed. The same objection was urged before us, but on examination of the evidence in the case we are satisfied that the objections are unsubstantial and that the Court below was right in accepting the evidence of service of the notice upon the judgment-debtors.

2. Accepting, therefore, that the judgment-debtors had received notice of the execution, it was open to them to object to the execution of the decree upon the ground that it was already barred by limitation. This they did not do, and on the 3rd of May 1917 the Court accepted the affidavit filed on behalf of the decree-holder in proof of service of the notice and directed a writ of attachment to issue fixing the 22nd of May 1917. The Court accepted the evidence on the record that the writ of attachment was also served and directed on the 12th of June 1917 notice to issue for the sale proclamation under O. XXI, R. 66. Therefore, not only the notices were served upon the judgment-debtor under O. XXI, r. 22, but also the writ of attachment was served upon the spot. The Court, therefore, decided after due notice upon the judgment-debtors that the execution was in order that it should proceed. That order is binding upon the judgment-debtors. It is an order deciding as between the parties that the execution was not barred by limitation. Such an order has been held to operate as res judicata, and whether right or wrong, the order cannot be challenged in subsequent execution proceedings. The result is that it is not open to the judgment-debtors now to challenge the execution of the decree filed in 1919 that the decree was barred long before the present execution.

3. The result is that we accept the view taken by the Court below and dismiss the appeal with costs.

4. The decree-holders' trouble does not cease with the disposal of this appeal, for we find that after the objection of the judgment-debtors was disposed of on the 19th of July 1920 and the execution was directed to proceed, the execution was dismissed as being infructuous on the 8th of May 1921. The decree-holder has, therefore, come to this Court aggrieved by the order of the Subordinate Judge, dated the 6th May 1921, passed by the Subordinate Judge both in appeal and in revision. The order of the Subordinate Judge is in the following words: "Decree-holder takes no step, though the case was fixed for yesterday when I was busy with sessions. The execution case is accordingly dismissed as infructuous." The order in question is not appealable. This kind of order is not included in the list of orders in O. XLIII, R. 1, and no order unless included in that list is appealable. The order in question was passed in execution of the decree on account of the default of the decree-holder to take certain steps. The order was passed in execution proceedings by virtue of section 141 of the Code of Civil Procedure, in other words, the order is similar to what is passed in suits on account of default of plaintiffs. Here, the decree holder failed to take necessary steps for the prosecution of his application in execution and it was accordingly dismissed for default. Whether this order is an order in the suit or in the execution it is not at all appealable. Mr. Kulwant Sahay concedes that the preliminary objection of the respondents that the appeal is incompetent must prevail. The appeal is, therefore, dismissed.

5. Knowing of this difficulty Mr. Kulwant Sahay has also preferred an application in revision. The question then is whether the order of the 6th of May was without any jurisdiction or jurisdiction was exercised illegally or with material irregularity or whether the Subordinate Judge failed to exercise the jurisdiction vested in him by law. On the 28th of April 1921 the decree-holders filed process-fee and notice. The Court directed notice to issue under O. XXI, R. 67, fixing the 9th of May 1921 for its return. In the meantime, notices were returned unserved, and on the 4th of May the Court passed the following order:-"Notices returned unserved. Judgment-debtor No. 2 refused to take notice as there is mistake in his name in the notice. The notices of other judgment-debtors not served, there was no different goshwara. Decree-holder to take necessary step by tomorrow." On the 6th of May the Court passed the order with which we are concerned. "Decree-holder takes no step though the case was fixed for yesterday when I was busy with sessions. The execution case is accordingly dismissed as infructuous.

6. Now, the date fixed for the return of notice was the 9th of May 1921 and that obviously was done in the presence of the decree-holder, for upon his filing process fee that order was passed. The orders of the 4th and the 6th of May do not appear to have been passed with the notice and knowledge of the decree-holder. The order sheet does not show that any intimation was given to the decree holder or his Pleader. On the other hand, column 4 of the order-sheet does not contain signature of the decree holder's Pleader. The order of the 4th of May directed the decree-holder to take necessary steps by the next day. Such an important order requiring a party to do something must necessarily have been signed by the Pleader of that party. The rules of the High Court on the subject are explicit and column 4 is expressly designed for that purpose. The decision of this Court in the case of Ram Sukul v. Kesho Prasad Singh (1918) 3 P.L.J. 218: 4 P.L.W. 75: 43 I.C. 925 (F.B.) has concluded the matter. On behalf of the decree-holder an affidavit has been filed staling that they had no knowledge or information of the orders of the 4th and the 6th of May. There is no counter affidavit filed on behalf of the judgment-debtors and the record of the Court, namely, the order sheet in question supports the statement of the decree-holder. Therefore, it must be held that the orders of the 4th and the 6th of May were passed behind the back of the decree-holder and the case was taken up without notice-having been given to the decree-holder. Such an order is without jurisdiction. No order can be pissed to the prejudice of a party without having given him an opportunity to be heard. The order in question was also irregular, inasmuch as the return of notice was fixed to be taken up on the 9th of May. It was taken up and disposed of long before the said date Considering all the circumstances we have no hesitation in holding that the order of the 6th of May 1921 must come within the purview of the revisional power of this Court and is one which, the justice of the case demands, must be set aside.

7. We, therefore, set aside the said order and direct execution to proceed in continuation of the order of the 28th of April 1921, allowing an opportunity to the decree-holder to have notice under O. XXI, R. 66 served upon the party and to take such legal steps as he may be entitled to in prosecution of the execution of his decree. In the circumstances of the case we make no order as to costs both in the decree-holder's Appeal No. 111 and Civil Revision No. 55, and direct that each party should bear its own costs.

8. It is necessary that in this case notice of every order must be given to the parties and their signatures or those of their Pleaders must be obtained on the orders, inasmuch as the decree is an old one of 1909 and is about to be barred altogether by 12 years limitation. If the parties or their Pleaders refuse to sign, the Court must make a notice to that (sic).

John Bucknill, J.

9. I agree.