BANERJEE,J. - (1.) THIS second appeal arises out of an execution proceeding instituted in the following circumstances. The decree in the suit was made on 30th June 1933. An appeal from it was dismissed on 30th January 1934. An application for execution of the decree was made on 14th August 1934. In due course sale proclamation was published on 21st July 1935. But no further step having been taken, it was dismissed for default on 4th December 1935.
(2.) ON 23rd June 1937, one Surjya Narayan Roy claiming to be an assignee of the decree filed an execution case. It was registered. On 20th August 1987 the order registering the application was cancelled and the petition was treated as an application for substitution. The decree -holder made another application which gave rise to execution case no. 139 of 1939. This application was filed on 1st September 1939 and was dismissed for want of prosecution on 4th June 1941. In this execution case notice under Order 21, Rule 22, Civil P. C., had been issued, followed by a notice under Order 21, Rule 66. This application again was dismissed for non -prosecution on 4th June 1941. Execution case No. 21 of 1943 from which this appeal arises was started on 3rd June 1943. In this execution case, after notices under Order. 21, Rule 22 and Order 21, Rule 66, Civil 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 23rd June 1937 is not regarded as a step -in -aid of execution, the application which was filed on 1st September 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.
(3.) THE learned advocate appearing on behalf of the appellant has taken before us one point and one point only, in support of the appeal namely that it is not open to the judgment -debtor to take the plea of limitation by reason of the fact that in the application which was started on 1st September 1939, there was an order for the issue of a notice under Order 21, Rule 22, Civil P. C., followed by an order for publication of the sale proclamation under Order 21, Rule 66. According to counsel, when the Court after issue of notice under Order 21, Rule 22 directed sale of the properties, it came to an implied finding that; the application was not barred by time, otherwise, it could not order the sale.;