The plea of res judicata is no bar to the judgment-debtor taking the point of limitation to the application under consideration.

BANERJEE, J. :- 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 Bale 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 1937 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 O. 21, R. 22, Civil P.C., had been issued, followed by a notice under O. 21, R. 66. This application again was dismissed for non-prosecution on 4th June 1941.

3. Execution case No. 21 of 1943 from which this appeal arises was started on 3rd June 1943. In this execution case, after notices under O. 21, R. 22 and O. 21, R. 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 lab 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.

4. 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 O. 21, R. 22, Civil P.C., followed by an order for publication of the sale proclamation under O. 21, R. 66. According to counsel, when the Court after issue of notice under O. 21, R. 22 directed Rule of the properties, it came to an implied finding that the application was not barred by time, otherwise, it could not order the sale.

5. The question before us is whether the notice under O. 21, R. 22 was served on the judgment-debtor. If the notice was not served the judgment-debtor had no opportunity to raise the question of limitation and, therefore, no question of res judicata arises. The only evidence, the judgment-debtor produced before the Courts below in proof of service of the notice was a certified copy of the suit register. There was no other evidence on this point. In the register there are entries showing that the notices were issued. But that does not mean that the notices, were served. Such entries by themselves cannot prove service. It has been laid down in a Bench decision of this Court Mohauddin v. Pirthichand Lal, 19 C.W.N. 1159 : (AIR (2) 1915 Cal 444), where it was observed that the mere entry in the order sheet is no proof that the notice had been served. In this case we are unable to hold that there was service.

6. The Court issues notice under O. 21, R. 22 where the decree is more than one year old or when the decree is sought to be executed against the legal representative of the judgment-debtor. If the person to whom notice is issued under O. 21, R. 22 does not