The substance of an order must be looked into, not just its form, to determine the effect of the order on the continuation of an execution case.

JUDGMENT

1. This is an appeal by the decree-holders whose application for execution has been dismissed by both the Courts below on the ground that at the date of the application the decree under execution was dead and gone. The application for execution with which we are concerned in this appeal was filed on 18th September 1936, and was numbered as Execution Case No. 333 of 1936. For the purposes of following the controversies between the parties, the following facts are material. The decree under execution is a mortgage-decree passed against the respondents so far back as 28th February 1925. The first application for execution, numbered 198 of 1925, was filed on 27th May 1925. The decree-holders did not proceed on with this application and allowed it to be dismissed for default on 8th September 1925. Between 1925 and 1927 there were certain proceedings taken by the mortgagors to set aside the final decree which was passed on 28th February 1925. These proceedings terminated in favour of the decree-holders in the year 1927. On 21st June 1929, the second execution case numbered 189 of 1929 was started.

2. The judgment-debtors filed objections on 18th September 1929. They contended that this execution case, namely the second one, was barred by limitation inasmuch as it was not filed either within three years of the decree or within three years of a step-in-aid of execution taken in the course of the first execution case. This objection u/s 47 of the Code was numbered 82 of 1929. The first Court overruled the objection and held that the second application for execution was within time. The judgment-debtors carried the matter to the District Judge. The learned District Judge concur, red with the judgment of the trial Court in his order dated 29th March 1930. A further appeal was taken to this Court by the judgment-debtors and that appeal was dismissed on 24th November 1932. In the meantime, after the dismissal of the Miscellaneous Case No. 82 of 1929 by the first Court, the decree-holders proceeded on with their execution. They were at liberty to do so because there was no stay order either by the learned District Judge or by this Court. It appears from the order sheet of Execution Case No. 189 of 1929, what we have called the second execution case, that the decree-holders had the properties advertised for sale, the sale proclamation having been actually issued on 14th May 1930. In the proclamation the date of sale fixed was 3rd July 1930. This appears from the order sheet Ex. 3 which has been exhibited in the case.

3. On 7th July 1930, there was an order of the Court stating that the sale was to be held the next day by the Nazir, that is to say on 8th July 1930. On 8th July 1930 an order was recorded by the Court dismissing the execution case. This order has been marked Ex. B.2. On 19th August 1933, the decree-holders made another application for execution. This application was numbered as Execution Case No. 292 of 1933. No notice under Order 21, Rule 22 was issued on the judgment-debtors, but we find that a notice under Order 21, Rule 66 asking the judgment-debtors to appear for the purpose of settling the terms of the sale proclamation was issued by the Court. This notice was served on the judgment-debtors on 12th November 1933. The notice required the presence of the judgment-debtors in Court on 27th November 1933. On 19th December 1933 however the execution case was dismissed for default. After that the present execution case was started, as we have already stated, by an application filed by the decree-holders on 18th September 1936.

4. The judgment-debtors in their objection u/s 47 of the Code said that Execution Case No. 292 of 1933 was barred by limitation inasmuch as it was filed beyond three years of 8th July 1930 when the final order, namely the order of dismissal for default, was passed in the previous execution case, namely Case No. 189 of 1929. This objection of the judgment-debtors has been given effect to by both the Co