U. C. Sharma, J.

This application by two of the judgment debtors is directed against the concurrent Judgment of the Courts below refusing to set aside the execution sale held on 10.3.1966 in Money Execution Case No.1 of 1963 of the court of the Subordinate Judge, Darbhanga.

2. The facts of the case are that Srimant Narain singh and others [opposite 2nd Party] obtained a decree in Title Suit No. 144 of 1952 in the court of 2nd Additional Subordinate Judge, Darbhanga against the father of petitioner no. 1 and husband of petitioner no 2 and Sadanand Jha and others opposite 3rd party. The defendants of the suit preferred an appeal before this court being F. A. No 212 of 1960. In that appeal a consent decree was passed. The defendants appellant gave up all the claims in respect of the suit properties In favour of the plaintiffs and in lieu of mesne profits and costs, the defendant appellant nos. 1 to 4. i. e. the two petitioners, Sadanand Jha and Palatni Ojha In were to pay a consolidated sum of Rs. 1,800/- to the decree holders. The consolidated sum having not been paid, the decree holders levied execution in Execution case No.1 of 1963 and on 10.3.1966 the properties of the judgment debtors were sold and were purchased by Krishna Chandra Jha [opposite 1st party]. On 3-2-1967 the petitioners filed an application purporting to be one under Order 21 Rule 90 of the Code of Civil Procedure [hereinafter to be called as "the Code"] for setting aside the sale on the ground amongst other that do notice under Order 21 Rule 22 of the Code or for that matter any process of the execution was served on the judgment - debtors. The result was that the valuable properties of the judgment debtors, that Is. over 37 bighas of land Including the homestead, orchard residential houses etc. were sold for a paltry sum of Rs. 2,.252/- only,

3. The application was opposed by the auction purchaser who filed a rejoinder. It was pleaded, inter alia, that the application was hopelessly barred by limitation, the judgment debtors had full knowledge of the execution and all the processes in the execution were duly served. There was no fraud or collusion in service of the processes. The properties were sold for proper price.

4. The parties adduced evidence both oral and documentary in support of their respective contentions and the learned Subordinate Judge, by his judgment dated 1.3.1979, on consideration of the same, came to the conclusion that the processes of the execution were served on the judgment-debtors and that the application for setting aside the sale was hopelessly barred by limitation. Accordingly the application was dismissed. On appeal the learned Additional District Judge of the same place, by his judgment dated 8.6.1971, affirmed the findings of the learned Subordinate Judge and dismissed the appeal.

5. Being aggrieved by the said judgment the applicants filed this revision before this Court. At the time of admission of this application the petitioners, who the permission of the Court put in an extra court fee so that if ultimately this revision was to be treated as an appeal, there might not be any difficult,. The case came up for final hearing before the leaned single Judge who was, by his order dated 19.10.1976, pleased to refer it to a Division Bench. Accordingly, this case has come before us for bearing.

6. Mr. Shreenath Singh the learned counsel appearing for the petitioners submitted that though the applicants (petitioners) had labelled their application for letting aside the sale as one under Order 21 Rule 90 of the code, to all intents and purposes, it was an application under Sec. 47 of the code inasmuch as, it was clearly asserted id the application that no notice under Order 21 F. 22 of the Code vas served on the applicant and as such the application fell within the purview of Section 47 of the Code and Second Appeal would lie in this court. It was, therefore, urged that this revision should be converted into an appeal.

7. Mr. Kailas