G.N.Das, J. - (1.) This is an appeal by the decree-holder against a decision of our learned brother Chunder J.
(2.) The facts of the case were not fully placed before this Court We have therefore to state those facts in some detail.
(3.) On 23rd March 1942, the appellant obtained a decree in the Presidency Court of Small Causes, 4th Court, against Rati Kanta Mukherji for a sum of Rs. 1127-10-9. It appears from the order sheet which is on the record that there was an attachment before judgment on 6th March 1942 which was confirmed by the Court. On 18th June 1942, the attached properties were released from attachment and the order of that date goes on to state that the execution case was dismissed. On some date which it is not possible for us to discover from the records but prior to June 1944, the sole judgment-debtor Rati Kanta Mukherji died. He was survived by his widow and four sons, Nalini Ranjan Mukherji, Anil Krishna Mukherji, Ranjit Kumar Mukherji and Sailen Mukherji the latter two being minors. On 26th June 1944 the decree-holder made an application which purports to be one for execution of the decree passed on 23rd March 1942. In Column 9 of the application which is headed as "Mode in which the assistance of the Court is required" the following statement occurs ; "I pray that the total amount of Rs. 1127-10-9 together with interest on the principal sum up to date of payment and the costs of taking out this execution be realised by attachment and sale of defendant's moveable property as per annexed list and paid to me. A notice do issue upon Nalini Ranjan Mukherjee of village Nalta, P. O. Maju, district Howrah, to show cause why his name should not be substituted in record in place of defendant Rati Kanta Mukherjee now deceased and execution be issued against him and notice be sent under registered cover. Grounds: That Nalini Ranjan Mukherjee is the son, heir and legal representative of the defendant Rati Kanta Mukherji now deceased." On the day following the following order was recorded : "On the plaintiff's application for substitution of the name of Nalini Ranjan Mukherji in place of defendant deceased ordered; Issue notice returnable on 1st August 1944." The order sheet shows that the case was adjourned on 1st August 1944, 22nd August 1941, 9th September 1944, 11th November 1944 on which date it was adjourned to 2nd December 1944, when the application was dismissed for default. Some time thereafter, on 8th June 1945 an application on terms similar to that which was filed on 26th June 1944, was presented to the Small Cause Court on behalf of the decree-holder. The Court thereupon issued a notice on 13th June 1945. The case was adjourned on 7th July 1945, 4th August 1945 and then to 1st September 1945. Meanwhile, on 25th August 1945, the following order was recorded : "On the plaintiffs' application for substitution of the names of Anil Krishna Mukherji, Ranjit Kumar Mukherji, Sailen Mukherji and Mrs. Rati Kanta Mukherji the minors represented by their mother Mrs. Rati Kanta Mukherji ordered: Issue notice returnable on 1st September 1945." On 1st September 1945, it was ordered : "Ordered that the names of the opposite parties Anil Krishna Mukherji, Ranjit Kumar Mukherji, Sailen Mukherji, the minors represented by their mother Mrs. Rati Kanta Mukherji as guardian and Mrs. Rati Kanta Mukherjee be placed on record as heirs and legal representatives of deceased defendant. No order is made as to Nalini Ranjan Mukherji." Nothing further was done till 1st October 1945, when the following order is recorded : "On the plaintiff's application for substitution of the name of Nalini Ranjan Mukherji in place of deceased defendant ordered: Notice do issue returnable on 24th November 1945." On 3rd October 1945 notice was issued as prayed for. The matter was adjourned on 24th November 1945 to 1st December 1945 on which date the Court passed the following order : "Application granted: Let the name of Nalini Ranjan Mukherji be placed on record as son, heir, legal representative of the defendant since deceased. Execution to issue," On 12th December 1945 an application was made by the decree-holder for transfer of the decree to the Munsit's Court at Howrah on 17th December 1945 the decree was transferred under letter No. 2735 dated 20th December 1945. The execution was thereupon started at Howrah. The judgment-debtors appeared and raised an objection to the effect that the execution of the decree was barred by limitation. The trial Court overruled the objection and directed execution to proceed. On appeal, the first appellate Court allowed the appeal and dismissed the execution case. Against this order a further appeal was taken to this Court being appeal from Appellate order No. 197 of 1947. This appeal was heard on 11th August 1949 and the appeal was dismissed. It is the propriety of this decision which is now in question before us.;