JUDGMENT

Mukerji, J. - This appeal arises out of an order passed by the Subordinate Judge of My mensingh refusing to set aside a sale held in execution of a mortgage-decree The appellant was one of the judgment debtors against whom the said decree was passed. A preliminary decree was passed on the 27th December 1922 and. the final decree on the 23rd January 1923. The sale took place on the 15th March 1924, the decree-holder being the auction-purchaser at the sale. The application on which the order which forms the subject-matter of this appeal was passed was made by the appellant on the 15th April 1924. The application purported to be one u/s 47 of the C.P.C. and also under Order XXI, Ruler 90 of the came Code. The objections that were put forward on behalf of the appellant in the said application in order-to bring it u/s 47 were mainly to the effect that the properties were not liable for the decree inasmuch as they belonged to the mother of the appellant and the decree had been passed not for the debts of the mother but for those of her husband; and that the father had no legal necessity to mortgage the properties and consequently the properties of the applicant were not liable for the mortgage. The same objection is also to be found in another application which was filed on behalf of the appellant previously on the 7th January 1924 and which was dismissed for non-prosecution on the 8th February 1924. It appears also that this objection was raised in the suit itself and the decree was passed on deciding the same against the applicant. This objection is really one which can hardly be considered as falling u/s 47, C.P.C. and the order that has been passed by the Subordinate Judge against which the present appeal has been preferred really comes under Order XXI, Ruler 90 of the C.P.C. That being so, the mere fact that in the application Section 47 was mentioned would not enable the appellant to save, limitation if, as a matter of fact, the application was not filed within 30 days of the sale. The respondent put forward a contention before us to the effect that the application was filed beyond 30 days from the date of the sale and that no reasons have been given by the appellant such as would enable him to get an order extending the period of limitation provided for an application under that rule. The learned Subordinate Judge in his judgment states that the application for setting aside the sale was made on the last dale of limitation. But looking at the dates on which the sale took place and the application was filed it will appear that it was filed a day too late. It should have been filed on the 14th April 1924 on which date, it appears, the Court was not closed and, therefore, as a matter of fact it was filed a day too late, and the application, therefore, should have been dismissed as not having been filed within time. As, however, it was not so dismissed but was dealt with on the merits, and as the learned Vakil appearing on behalf of the appellant has argued the appeal before us on the merits, I propose to deal with the case on its merits as well.

2. The objections put forward on behalf of the appellant are mainly three. The first is that before the preliminary decree was passed on the 27th December 1922 one of the judgment-debtors, namely, Masturi Khatoon, had died and that no substitution had been made of her heirs in her place before the said decree was passed and that it was only when the final decree was about to be passed on the 27th January 192; that is to say, about sixteen months after the date of her death that her heirs were brought on the record. It is contender that the decree that was passed was parte, having regard to the fact that the judgment-debtor's heirs were not brought on the record within the time allowed b law. In our opinion, this is not an objection which can be taken either on an application u/s 47 of the C.P.C. or h an application made under Order XXI, Ruler 90 o that Code. The Executing Court is