Fazl Ali, J.This is an appeal against an order passed by the Subordinate Judge of Jamtara setting aside a sale held in execution of the appellants decree. The learned Subordinate Judge has set aside the sale on the ground that the entire execution proceeding which culminated in the sale was void firstly because no notice under Order 21, Rule 22 had been issued by the executing Court although the application for execution bad been made more than one year after the date of the decree; and secondly because u/s 5 of Regulation 3 of 1872 the execution proceedings should have been commenced in the settlement Court and not in the Civil Court inasmuch as the estate concerned in this litigation was under settlement at the time the application for execution was made.

2. The learned advocate for the appellant contends that the view taken by the learned Sub-ordinate Judge is erroneous on both these grounds and it must be conceded that he has succeeded in showing that the second ground taken by the learned Subordinate Judge is not tenable in law. The question whether the prohibition contained in Section 5 of Regulation 3 of 1872 applies merely to a suit or to an execution proceeding was directly raised and decided in Upendra Chandra Singh v. Charanjit Singh A.I.R.1927. Pat. 38. It was dearly held in that case that the term, suit in Section 5 did not include a proceeding in execution and such a proceeding could be commenced in a Civil Court even when the settlement proceedings might have been going on.

3. The learned advocate for the respondent however relies on certain observations made by Kulwant Sahay J. in Baijulal Marwari v. Thakur Prasad Marwari A.I.R.1926. Pat. 33 which are to the effect that the execution proceeding is merely a continuation of the suit and therefore will be governed by Section 5 of the Regulation. That case seems to have been considered by Das and Foster JJ. in Upendra Chandra Singh v. Charanjit Singh A.I.R.1927. Pat. 38 wherein it was pointed out that the attention of the learned Judges who decided that case had not been drawn to the decision of the Judicial Committee in Ram Kirpal v. Rup Kuari1884.6 All. 269. In my opinion the view taken in the later decision is one which this Bench ought to follow.

4. As to whether a notice under Order 21, Rule 22 was necessary in the execution proceeding which has culminated in the sale, it will appear from what follows that the exeouting Court had dispensed with a notice under Rule 22 owing to an erroneous report made by the office. The decree under execution was passed on 27th July 1927 by the Subordinate Judge of Asansol before the same learned Judge; the last application for execution was made on 28th July 1933. On 23rd October 1933 how ever the application was dismissed. After that on 6th March 1934 the decree-holder applied to the Subordinate Judge to transfer the decree to the Subordinate Judge of Jamtara for execution and this was done. The decree-holder then made an application for execution before the last Court on 27th August 1934. On 29th August 1934, the office reported that the application having been made within a year of the last order made against the judgment-debtor, no notice under Order 21, Rule 22 was necessary. The Subordinate Judge accepted the report and dispensed with the notice though as a matter of fact the last order which had been passed against the judgment-debtor had been passed on 22nd August 1933, that is to say more than a year before the application for execution was made. The learned advocate for the appellant contends that the last order passed against the judgment-debtor was passed not on 22nd August 1933 but on 23rd October 1933, but it appears that the order that was passed on that date was simply to this effect:

Return of sale papers not received back from Gay a Collectorate. The decree-holder did not intend to get fresh sale proclamation. The sale cannot be held without proper service of sale proclamation. Ordered that the execution case be dismissed for default.

5. This order, in my judgment, cannot be held to be an order against the judgment-debtor as required by the proviso to Order 21, Rule 22. The proviso says that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution, if the application is made within one year from the date of the last order against the party against whom execution is applied for, made on any previous application for execution. This provision was construed by the Calcutta High Court in Monmatha Nath Ghose Vs. Mt. Luchmi Debi and Others, and it was pointed out there that the expression against the party means adverse to the party and it was explained that these words must bear that meaning, because the proviso is based upon the principle that the party who is adversely affected by an order may well be presumed to have notice of the order.

6. It is therefore clear that the order passed on the 23rd October directing the execution proceedings to be struck off for the default of the decree-holder cannot be held to be an order made against the judgment-debtor. That being so, the view taken by the learned Subordinate Judge in this case must be held to be correct.

7. It was also contended by the learned advocate for the appellant that even though the order of the executing Court dispensing with the notice under Order 21, Rule 22 may have been passed under a mis-apprehension; the matter cannot be reopened in the present proceeding and the order should be held in the circumstances of the case to be an order passed under Sub-rule (2) of Order 21, Rule 22.

8. The last contention does not appear to me to be sound because Sub-rule (2) provides that a Court may decide not to issue a notice under Order 21, Rule 22 only if for reasons to be recorded it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. There is nothing in the order recorded by the lower Court to show that it considered that the issue of notice in the present case would cause unreasonable delay or would defeat the ends of justice, nor does it appear from the circumstances of the case that when the Court dispensed with the notice, it purported to act under Sub-rule (2).

9. As to the contention that the order cannot be attacked in the present proceeding, I would only point out that as the absence of notice under Order 21, Rule 22 goes to the root of the jurisdiction of the executing Court, the objection could be taken at any time.

10. In these circumstances I would uphold the order appealed against and dismiss this appeal with costs.

Rowland, J.

I agree.