N.L.Untwalia, J.

(1) This is a miscellaneous second appeal by the judgment-debtors against the concurrent decision of the Courts below refusing to set aside a sale, held on the 8th of June, 1955, at their instance.

(2) A preliminary objection has been raised on behalf of the decree-holder respondent that no second appeal lies to this Court. This objection is made on the ground that the application, strictly speaking, was under Order XXI, Rule 90 of the Code of Civil Procedure, and, therefore, no second appeal lies. There seems to be some difficulty because of the provisions of Section 102 of the Code of Civil Procedure also, but, since on merits, I am going to dismiss the appeal, I do not decide this preliminary objection.

(3) Three points were pressed before me by Mr. S.C. Mukherjee, learned Counsel for the appellants. I shall go on stating them and discussing them one by one.

(4) The first contention is that the decree in question had been obtained from the Subordinate Judge, 1st Court, Muzaffarpur, exercising his powers under the Provincial Small Cause Courts Act; and there was no order by that Court transferring this small cause courts decree to its ordinary original civil side to execute as a money decree by attachment and sale of immovable property. This submission was based upon a decision of the Madras High Court in Lakshminarasamma v. Seshayya, AIR 1951 Mad 49

1. Some Lahore and Peshawar decisions were also cited, but I need not specifically mention them. The point decided in the Madras case is that, if there is neither any application for transfer of the small cause courts decree to the ordinary original civil side of the Court nor any order to that effect, the Court cannot execute the decree and proceed against immovable property, even though the Court may be the same. On reference to the facts of that case, it would be noticed that there was neither the required application nor the order when the execution case was filed. An amendment petition was filed on a date which was beyond 12 years of the date of the decree, that is to say, beyond the maximum period provided in Section 48 of the Code of Civil Procedure. It was, under those circumstances, held that this was not permissible and the amendment could not be allowed beyond the period of limitation as in the initial stage of the execution case neither there was any application for transfer nor any order to that effect. In the present case, it would appear that in the execution petition itself the decree-holder had made a prayer to transfer the small cause courts decree from the small cause side to the ordinary original civil side. The Court, thereafter, proceeded to execute this decree as a money execution and proceeded to attach and sell the immovable property. A formal and express prayer on behalf of the decree-holder was there, a formal express order was not there. But, in effect, it must be held that the Court proceeded to execute this decree by attachment and sale of the immovable property after transferring it from its small cause side to the ordinary original civil side. The observations in the Madras case to the following effect would, therefore, show that this case is not helpful to the appellants here :

"But it is one thing to say that no formal application or order is necessary for transfer to the original side, and quite a different thing to say that no application or order is necessary for transfer to the original side."

The present case is covered by a Bench decision of the Travancore-Cochin High Court in Mohd. Mastan Kunju Mohammad Abdul Khadar v. Mytheen Kunju Pakiru Mohammad, AIR 1956 Trav-Co. 21

3. In that case neither there was any formal prayer nor any formal order, yet it was held that, when the Court proceeded to execute the decree on its ordinary original civil side, it proceeded, in effect, after transferring the decree from its small cause side to the ordinary original side. In the instant case the position is much better, as there was an express prayer for transfer in the execution petition itself. I, therefore, do not find any substance in this argument.

(5) The second contention is that the house which has been sold in execution of this decree was exempt in view of the provisions of proviso (c) of Sub-section (1) of Section 60 of the Code of Civil Procedure, and, therefore, the sale ought to be set aside. I am unable to accept this argument in view of the proviso to Sub-rule (1) of Rule 90 of Order XXI of the Code of Civil Procedure, as amended by the Patna High Court, wherein it is provided that.

"no application to set aside a sale shall be admitted, (a) upon any ground which could have been, but was not put forward by the applicant before the sale was concluded."

The findings of the Courts below are that notices and processes in the execution case had been served on the judgment-debtors. It was, therefore, open to them to go and ask the executing Court to exempt the property, if it could be exempted, under Section 60 of the Code of Civil Procedure, from sale. This they did not do, and, therefore, they are not entitled to ask the Court now to set aside the sale on this ground.

(6) The third contention is that the notice under Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 was not served on appellant No. 2 even according to the finding of the Courts below. The position, so far as this point is concerned, appears to be that the notice under Section 13 was issued against both the judgment-debtors. Appellant No. 1, Nageshwar Prasad, is son of appellant No. 2, Uttim Lal. There docs not seem to be a case put forward on their behalf that the father and the son are separate, or that there is any adverse interest as between them. The notice was personally served on appellant No. 1, who, at the relevant time, was working as a clerk in the Collectorate at Muzaffarpur. He accepted both the notices, 011 behalf of his father as well as on his own behalf. In spite of the service of this notice, no steps were taken by the judgment-debtors to raise or to dispute the value fixed by the Court. The argument before me is that that is no service of notice on Uttim Lal, the father, and that the son had no right to accept the notice on behalf of his father. Uttam Lal has not examined himself to deny the authority of the son to receive the notice on his behalf. He has not come to pledge his oath that he did not receive the notice or that he had no knowledge of the execution case or of the valuation matter. Order 5, Rule 15, of the Code of Civil Procedure provides :

"Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him."

As I have stated above, appellant No.

1. is the son of Uttim Lal and is an adult male member of the family. He accepted the notice on behalf of his father, who has not come forward to challenge his authority. In view of all these circumstances, it seems to have been held by the Court of first instance that the notices under Section 13 of the Money-Lenders (Regulation of Transactions) Act were served on both the appellants, and this finding has not been upset by the Court of appeal below. I am, therefore, of the view that the finding, is that the notices under Section 13 were served on both the appellants. In any view of the matter, at best it can be said that there was an irregular service of notice under Section 13 on Uttim Lal, but that by itself is not sufficient to vitiate the sale specially in view of the finding of the Courts below that the appellants have sustained no substantial injury on account of the sale in question. I, therefore, hold that this point also has no substance.

(7) The result, therefore, is that the appeal fails, and is dismissed; but, on the facts and in the circumstances of the case, I would direct the parties to bear their own costs throughout of this miscellaneous proceeding for setting aside the sale.