S.K. Ghose, J.
1. This is an appeal by the judgment-debtors against an order refusing an application under Order 21, Rule 90, Civil P.C. The learned Subordinate Judge found that no notice was served under Order 21, Rule 22, Civil P.C., but he held that under the proviso to that rule no notice was necessary. This is the point in this appeal.
2. It appears that a previous execution case was started on 1st March 1924, and three orders were passed on 16th June and 17th June, 1924 The first two orders numbered 5 and 6 in the order-sheet related to the sale and Order 3 directed that set off be allowed as prayed for. It maybe argued that these orders, or at least the last order, can be construed as orders against the judgment-debtors on the previous application for execution. But it is pointed out that according to the judgment in the previous execution ease dated 17th December 1924, the Court has found that the notice under Rule 60 of the Code was not served and that the sale proclamation was not published. The appellants are, therefore, entitled to say that the orders of 16th and 17th June 1924 were passed behind their back and that, therefore, the decree-holder cannot take advantage of those orders for the purpose of evading notice under Order 21, Rule 22. I think this contention is sound and that it must prevail.
3. It is contended by the other side that this is a new point taken in appeal. But as a matter of fast the point that no notice was served under Rule 22 has all along been taken and the present point does arise out of that contention. It is also contended that in the previous case notice under Rule 22 might not have been necessary. But there is nothing to show this. On the contrary it appears from the order-sheet of the previous execution case that notic9 under Rule 66 was the only notice that was directed to be issued, that no other notice was issued, and that consequently no other notice was served.
4. Another point taken by the learned advocate for the respondent is that the present application for execution must be taken to be a revival of the previous execution case which was directed to be struck off on 20th December 1924 and we are referred to the case of Jira Bibi v. Majiruddin Chowdhury A.I.R. 1921J Cal. 594. There the point was one of limitation, whereas in. the present case altogether a new case was started.
5. The appeal is allowed, the order of the learned Court below is reversed as the sale is set aside on the ground of want of service of notice under Order 21, Rule 22 of the Code.
6. The appellants are entitled to their costs in this Court: the hearing-fee being assessed at two gold mohurs.
B.B. Ghose, J.
7. I agree.