1. This appeal arises out of an application under Section 47 of the Civil Procedure Code. The facts are these: One Rajdhar Shaha obtained a mortgage-decree against the appellant and some other persons in Suit No. 1124 of 1903 on the 22nd February 1904. Rajdhar having died, his widow Bidya Sundari obtained the final decree in the mortgage suit on the 20th March 1906. She executed the decree in 1907. Then she transferred the decree to certain persons from whom the present respondents purchased it on the 16th March 1910. On the 3rd May If 10, the respondents applied for execution of the decree in Execution Case No. 314 of 1910. No notice under Order XXI, Rule 16, was issued or served upon the decree-holders or the judgment-debtors, but, on 2nd June 1910 a notice under Order XXI, Rule 22, Code of Civil Procedure, was served upon the judgment-debtors, and on the next the 18th September 1912, the appellant applied under Order IX, Rule 13, to set aside the ex part decree. The application was made against Bidya Sundari alone as the opposite-party. Bidya Sundari did not appear in that application and the ex parte decree was set aside on the 15th February 1913 and the original suit was revised, but, as Bidya Sundari did not appear to prosecute the suit, it was dismissed for default on 12th March 1913. Meanwhile, on the 29th November 1912, the respondents applied for execution of the cm parte decree and a notice under Order XXI, Rule 22, Code of Civil Procedure, was again served upon the judgment debtors on the 30th December 1912. The suit having been dismissed for default on the 12th March 1913, the present application was made by the appellant under Section 47, Code of Civil Procedure, on the 1st May 1913 objecting that the execution case could not proceed on the grounds that no notice under Order XXI, Rule 16, had been served, that the respondents had not acquired any interest in the decree by transfer and that the ex parte decree sought to be executed, having been already set aside, could not be executed at all, A. petition of objection was filed on behalf of the present respondents and they urged that the Court, having regard to the circumstances, ought to exercise the powers under Section 151, Code of Civil Procedure, and set aside the order by which the ex parte decree had been set aside.
2. The Court of first instance held that the appellant had notice of the transfer in favour of the respondents, that he, therefore, ought to have taken steps to have the respondents brought on the record of the case for setting aside the ex parte decree and that having taken proceedings, in the case in the absence of the persons who were interested, he did not act bona fide and it accordingly disallowed the application of the judgment-debtors. On appeal, the learned Judge, although he agreed generally with the Munsif, held that no notice having been served under Order XXI, Rule 16, the execution could not proceed until the service of the notice and remanded the case to the Court of first instance, in order that the^ question whether the respondents had really a right to execute the decree might be determined after service of the notice under Order XXI, Rule 16, Code of Civil Procedure. One of the judgment-debtors has appealed to this Court.
3. It appears that the respondents who claimed under a transfer from Bidya Sundari did not get themselves substituted in the place of Bidya Suudari under any order of the Court, and no notice under Order XXI, Rule 16, Code of Civil Procedure, having been served either upon Bidya Sundari or upon the judgment-debtors, the execution could not proceed under the express terms of Order XXI, Rule 16 of the Code. The respondents not having been substituted by the order of the Court in the Execution Case No. 314, the appellant was not bound to proceed against these persons in the application for setting aside the ex parte decree which was made against the only person on the record, i.e., Bidya Sundari, and, although a good deal of suspicion arises out of the circumstances of the case, we do not see how the respondents can proceed with the execution before the order setting aside the ex parte decree is set aside. We are unable to give effect to the contention that the order setting aside the ex parte decree should be set aside under Section 151 of the Civil Procedure Code, and that for two reasons: the first being that the present proceedings have arisen in the course of execution proceedings, and, secondly, that the question whether there had been real transfer of the interest in the decree to the respondents has not yet been determined by tne Court. It seems to us that it is necessary for the respondents to take steps for setting aside the order by which the ex parte decree was set aside. So long as the dismissal of the original suit stands, we think the respondents cannot execute the decree. Under the circumstances, the orders of the Courts below will be set aside, but, having regard to the circumstances of the case, each party will bear its own costs in all the Courts.