An application for transfer of a decree from one Court to another and the order passed thereon did constitute a step-in-aid of execution as contemplated by Article 182 (5), Limitation Act.

Sarjoo Prasad, J.

1. This appeal which has been preferred by the judgment-debtors arises out of an application under Order 21, Rule 90 read with Sec. 47, Civil P. C.

2. The decree under execution was passed on 26th January 1913. It was transferred for execution by the Subordinate Judge, 1st Court, Monghyr, under his order dated 17th January 1946, passed upon an application made by the decree-holder for that purpose. The execution case to which this appeal relates was filed in the Court of the Subordinate Judge, Begusarai, on 31at January 1947. In the said execution after the service of the various processes certain properties were attached and sold on 1st December 1947. It appears that immediately after the sale but on that very day two of the judgment-debtors appeared and applied for time to pay off the decretal dues. This application was not entertained by the Court, and thereafter on 2nd January 1948, the judgment-debtors including those who had appeared on the date of the sale filed this application under Order 21, Rule 90 and Sec. 47, Civil P. C.

3. In the application in question the judgment-debtors alleged that the sale was without jurisdiction as notice under Order 21, Rule 22 had not been served on them. They also stated that there was fraud and material irregularity and illegality in publishing and conducting the sale, and they further alleged that the execution case itself was barred by limitation.

4. The decree-holder-auction-purchaser resisted the said application filed by the judgment-debtors and contended that the various processes were duly served, that there was no limitation involved, and that the sale had validly taken place.

5. The learned Subordinate Judge who heard the application by his order dated 26th May 1948, dismissed the same. He found that the plea of non-service of notice under Order 21, Rule 22 was frivolous, that the allegation of material irregularity in publishing and conducting the sale was incorrect, and that the applicants had failed to prove that they had sustained any injury by the sale. On the point of limitation, the learned Subordinate Judge found that the execution case was within time as having been filed within three years from 17th January 1946, which was the date of the order passed on an application for transfer of the decree for execution constituting a step-in-aid.

6. So fat as the service of notice under Order 21, Rule 32 is concerned, I agree with the view of the learned Subordinate Judge that the objection is frivolous. A reference to the order-sheet in the execution case shows that on 8th February 1947, notices under Order 21, Rule 22 were directed to be issued by the Court. On 10th March 1947, the Court recorded an order that notices had been served. Thereafter proceedings were taken for issue of attachment and sale proclamation on various respective dates. The judgment-debtors have not examined themselves to deny this service of notice but have put into the witness-box a patwari of theirs who was unable to say where he was in February 1947, that is, during the relevant period of the service of notice under Order 21, Rule 22. His evidence has been rightly discarded by the learned Subordinate Judge, and I see no reason to differ from his finding on that point. There is the further fact that two of the judgment-debtors-appellants actually appeared before the Court on the date of sale and applied for time to pay up the decretal dues.

7. The question of illegality or irregularity in the conduct of the sale or consequent prejudice to the judgment-debtors has not been seriously pressed before this Court. Even if the evidence adduced by the decree-holder on the point of service of attachment and sale proclamation is meagre, here is nothing to show that the price fetched at the sale was inadequate. As I have said, the point was not even seriously argued before this Court, and I must uphold the decision of the learned Subordinate Judge thereon.

8. The contention seriously