Mahapatra, J.

1. The facts leading to this miscellaneous second appeal may be stated in brief as follows. In 1953, respondent No. 2, Maharaja Kumar of Dumraon, filed a suit for rent (suit No. 452 of 1953) against three persons: Mt. Sonmukha Kuer (mother of the present respondent No. 1 Sudarsan Rai), Vijayee Tewari (respondent No. 3) and Ghuran Rai (respondent No. 4). Mt. Sonmukha Kuer died during the suit, but in spite of that, the suit was decreed against the three defendants, including herself. There was no substitution of her legal representatives in the suit after her death. An execution was levied on the decree, Execution Case No. 368 of 1954, against three judgment-debtors and in that proceeding, an auction sale was held on the 20th January, 1955, of the property involved in the present proceeding and the decree-holder, respondent No. 2, purchased that. The sale was confirmed on the 22nd of February, 1955, and sometime thereafter, the auction purchaser reportedly took possession of the property.

Mt. Sonmukha Kuers son Sudarsan Rai made an application tinder Sec. 47 and under Order 21 Rule 90 of the Code of Civil Procedure in the executing court, on the 18th of August