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 1958, to set aside the sale, mainly, on the grounds that the decree passed in the rent suit was a nullity, inasmuch as his mother, who was one of the defendants, had died during the pendency of the suit and before the decree, without being substituted by the legal representative; and that processes of the court, in the execution case, were fraudulently reported to have been served upon her, and as such, there was a fraud practised in the proclamation and conduct of the sale. He alleged that he came to know of the sale on the 10th of August, 1958. A week before this application was filed in court, the auction-purchaser (respondent No. 2) had sold the said property to two persons, who are the present appellants in this appeal, Awadh Behari Tewari and Swaminath Tewari, on the 11th of August, 1958, by a registered instrument. The transferees opposed the application of Sudarsan Rai, but the sale was set aside by the Executing Court on the 30th of July, 1960. Against that, an appeal was taken by the two transferees from the auction-purchaser but that failed on the 30th of September, 1961, by the orders passed by the first Additional Subordinate Judge, Arrah. The present appeal is directed against that.

2. For the appellants, it was contended that Sudarsan Rai was not a representative of a person who was a party to the suit, because, on the death of Mt. Sonmukha Kuer, the suit had abated against her and she was not to be deemed to be a party to the suit. Sec. 47 of the Code of Civil Procedure permits one who was a party to the suit or who is representative of such a party, to ask the Executing Court to determine any question that may arise between him and another person who was either a party to the suit or his representative. The section reads as follows:

"(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to the limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation:-

- For the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit."

3 Rule 4 of Order 22 of the Code of Civil Procedure (to be referred hereafter as the Code, for brevity) provides that where