- (1.) This second appeal arises out of an execution proceeding instituted in the following circumstances. The decree in the suit was made on June 20, 1935. An appeal from it was dismissed on January 30, 1934. An application for execution of the decree was made on August 14, 1934. In due course sale proclamation was published on July 21, 1935. But no further step having been taken, it was dismissed for default on December 4, 1935.
(2.) On June 23, 1937 one Surjya Narayan Roy claiming to be an assignee of the decree filed an execution case. It was registered. On August 20, 1937 the order registering the application was cancelled and the petition was treated as an application which gave rise to execution Case No.139 of 1939. This application was filed on September 1, 1939 and was dismissed for want of prosecution on June 4, 1941. In this execution case notice under Order 21 Rule 22 C.P.C. had been issued, followed by a notice under Order 21 Rule 66. This application again was dismissed for non-prosecution on June 4, 1941.
(3.) Execution case No.21 of 1943 from which this appeal arises was started on June 3, 1943. In this execution case, after notices under Order 21 Rule 22 and Order 21 Rule 66 C.P.C., the properties attached were sold. The question is whether this last execution case is out of time. It is quite clear that if the application made on June 23, 1937 is not regarded as a step in aid of execution, the application which was filed on September 1, 1939, was out of time. Therefore any order made in that application would be ineffective. Consequently, the present application would be time-barred. Originally the learned Subordinate Judge in this last mentioned execution case held that it was out of time. But on appeal the District Judge remanded the matter and the learned Subordinate Judge has revised his previous opinion and held that it is not time-barred. From that there was an appeal to the District Judge who has held that it is out of time. From the order of the District Judge the present appeal has been filed.;