Reuben, J.:— This appeal is directed against an order of the District Judge of Saran, treating as abated an appeal directed against an order of the Munsif at Chapra setting aside an execution sale under O. 21, R. 90 of the CPC.

2. The sale which is challenged was held as long ago as 1942 in execution of a decree obtained in 1940, an area of 14 bighas 11 kathas being sold for Rs. 1,541. Delivery of possession was given in the year 1943. The application under O. 21, R. 90 was filed in October 1946, and was allowed by the Munsif on the finding that there was fraud in the conducting of the execution, by which fraud knowledge of the sale was kept from the judgment-debtor till within thirty days of the finding of the application, and that by reason of this fraud the judgment-debtor had suffered substantial injury. The decree-holder appealed against this decision. In October 1947, he died and an application for substitution in his place was filed by the appellants, the son and the widow of the said decree-holder, in March 1948, that is to say, beyond the period of ninety days. The application has been dismissed as time-barred.

3. It is contended by the appellants that the provisions of Code of Civil Procedure relating to abatement had no application to the appeal before the District Judge. I reproduce below the relevant rules of O. 22 of the CPC:

“3(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole-surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall-abate so far as the deceased plaintiff is concerned and on the application of the defendant, the Court may award to him the cost which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

11. In the application of this Order to appeals so far as may be, the word ‘plaintiff’ shall be held to include an appellant, the word ‘defendant’ a respondent, and the word ‘suit’ an appeal.

12. Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.”

Rule 4 relates to substitution when a defendant-dies and R. 8 to the insolvency of a plaintiff.

4. At first sight, it would appear that the effect of R. 11 is to apply R. 3 to the appeal before the District Judge. But it has been held by the majority of a Full Bench of this Court (Das, J., dissenting) in Muhammad Taki v. Fateh Bahadur Singh, 9 Pat. 372; (A.I.R (16) 1929 Pat. 565 that R. 11 must be read subject to R. 12. Therefore, the applicability of the provisions regarding abatement to an appeal depends upon their applicability to the original proceedings out of which the appeal has arisen. The learned District Judge held that a proceeding under O. 21, R. 90, is not a proceeding in execution of a decree and, therefore is not excluded from the operation of the provisions as to abatement by R. 12.

5. This finding of the District Judge finds-apparent support from the decision of Das and Ross JJ., in Jagdish v. Sureshwar, 6 Pat. L.J 253 : (A.I.R (8) 1921 Pat. 107), dealing with the effect of a similar exemption as to proceedings in execution contained in O. 23, R. 4 of the Code, and an apparently direct case on the point is Gobind Nath v. Pratap Udai Nath, 2 Pat. 243 : (A.I.R (10) 1923 Pat. 29) decided by Das and Adami JJ. The latter case arose out of an application under Section 213 of the Chota Nagpur Tenancy Act for setting aside a sale held in execution of a rent decree. This section corresponds to O. 21, R. 90 of the CPC, but, unlike the Code of Civil Procedure, the Chota Nagpur Tenancy Act contains in S. 265, sub-s. (3), cl. (a), an express direction making the provisions of the Code of Civil Procedure relating to substitution and addition of parties applicable to “all suits, appeals and proceedings before the Deputy Commissioner” under the Act. The decision is, therefore, not a binding authority in the present case. In the course of this judgment, in the last mentioned case, Das J. reaffirmed his opinion already expressed in the case of Jagdish v. Sureshwar, 6 Pat. L.J 253 : (A.I.R (8) 1921 Pat. 107) (ante) that an application for setting aside a sale cannot be regarded as an application in a proceeding in execution of a decree or order.

6. Accepting this opinion as correct for the sake of argument, does it follow that the provisions regarding abatement necessarily apply to such a proceeding? In my opinion, it does not. A perusal of O. 22, R. 3, shows that in terms it relates to a suit. The same is the case with respect to Rr. 4 and 8. There is nothing in any of these three rules which would make them applicable to any proceeding other than a suit. Then, R. 11 provides that these provisions shall apply to appeals, the necessary amendments being deemed to have been made in them by the substitution of “appellant” for the word “plaintiff”, “respondent” for the word “defendant” and “appeal” for the word “suit”. Rule 12 merely excludes proceedings in execution of a decree or order from the application of the provisions. But it has no positive effect to apply the provisions to other proceedings. The positive provision is contained in S. 141 of the Code which I reproduce below:

“The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.”

The corresponding provision in the Code of 1882 was S. 647, which ran as follows:

“The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction other than suits and appeals.”

A difference of opinion arose between the High Courts as to whether this provision covered proceedings in execution, and, by an amendment in 1892, an explanation was added to the section:

“This section does not apply to applications for the execution of decrees which are proceedings in suits.” In the meantime, a decision of the Allahabad High Court in Fakirullah v. Thakur Prasad, 12 ALL. 179 : (1890 A.W.N 53) interpreting this section in its unamended form was taken to the Privy Council, and it was held by the Judicial Committee in Thakur Prasad v. Fakir-ullah, 17 ALL. 106 : (22 I.A 44) that the section did not apply to proceedings in the suit, but it related to original matters in the nature of suits, such as, proceedings in probate, guardianship and so on. It is now well settled that Section 141 of the CPC, must be interpreted in the same sense. It is not available, therefore, to apply the provisions as to abatement to a proceeding under O. 21, R. 90, even supposing that such a proceeding is not one in execution.

7. I have noticed above that Rr. 3, 4 and 8 in terms relate to suits and speak of a suit, a plaintiff and a defendant. An application under O. 21, R. 90, may be made by the decree-holder or by any person entitled to a share in a rateable distribution of assets, or whose interests are affected by the sale. It is quite possible, therefore, that persons who do not answer to the description either of plaintiff or defendant will be impleaded as parties to such an application. How, are the provisions as to abatement to be applied to such parties? Are they to apply only to the case of the death or insolvency of a plaintiff and the death of a defendant and not to the case of the death or insolvency of other parties?

8. It is true that the provision in O. 22, R. 12, expressly excluding proceedings in execution of decrees or orders, suggests prima facie that the provisions as to abatement are intended to apply to other proceedings. But the apparent difficulty created by this rule is, to my mind, dissolved by a study of the scheme of the Code. A suit, according to the scheme, passes through several stages. There is a stage prior to the decree in the Court of first instance. Then, there is the stage of appeal and, finally, the stage of execution. There may be various miscellaneous proceedings at all the three stages. So far as the first two stages are concerned, the Code has made it clear that the provisions as to abatement will apply, and the application of the provisions to the suit of the appeal, as the case may be, will to this extent affect any miscellaneous proceedings or appeals pending at that stage. It is as regards the third stage that R. 12 excludes proceedings from the application of the provisions as to abatement. Once the execution has been finally disposed of, the suit is at an end. The provisions of O. 22, thus, cover all the stages of a suit, and S. 141 of the Code which makes these provisions applicable to other proceedings of a civil nature. In the above analysis, I have not thought it necessary to complicate matters by considering how proceedings in revision or review of judgment would fit into the different stages of a suit.

9. According to my analysis, a proceeding under O. 21, R. 90, is a proceeding in execution. With all respect, I read the words “proceedings in execution” in R. 12 in a different sense from that adopted by Das J. in the case Jagdish v. Sureshwar, 6 Pat. L.J 253 : (A.I.R (8) 1921 Pat. 107) (ante) where he says:

“Nor do I see how a proceeding for setting aside a sale can (quite apart from this consideration) be regarded as a proceeding in execution. Such a proceeding may eventually result in the execution proceeding being reopened, but, in my view, it cannot be regarded as a proceeding in execution. Execution proceedings ordinarily end with sale which results in satisfaction or part satisfaction of the decree.”

He cites the Full Bench decision in Abdul Gani v. Raja Ram, 1 Pat. L.J 232 : (A.I.R (3) 1916 Pat. 216 F.B) in Support of this opinion. That was a decision as to whether an appeal lies from an order under O. 21, R. 95 of the CPC and involved only an interpretation of S. 47 of the Code. The question whether a proceeding under O. 21, R. 95, is a proceeding in execution was not considered. That it is a proceeding in execution would appear from a decision of Jenkins C.J and Ray J. in Hari Charan v. Manmatha Nath, 41 Cal, 1 : (A.I.R (1) 1914 Cal. 126), relating to proceedings under O. 21, Rr. 100 and 101, a decision which was approved by a Full Bench of this Court in Bhubuneswar Prasad v. Tilakdhari Lall, 4 Pat. L.J 135 : (A.I.R (6) 1919 Pat. 192). If an application under O. 21, R. 100, which comes at a stage when the execution sale has become final, can be regarded as a proceeding in execution, then this description will apply with all the more force to a proceeding under O. 21, R. 90, which attacks the Sale and may result in the getting aside of the sale and the reopening of the execution proceedings. I would not interpret the words “proceeding in execution” as meaning a proceeding in which the applicant seeks to execute the decree, but a proceeding which relates to a period before the execution of the decree or order has been finally disposed of. Order 21, R. 90, comes at a stage before the sale has even been confirmed. Under R. 92, the sale does not become absolute unless the application under O. 21, R. 90, has been disposed of, or the period limited for the filing of such an application has expired without an application having been filed. In the present case, it is true that the application has come long after the execution was disposed of. But, that is not a difficulty which matters to my interpretation, for the Legislature, by Section 18 of the Limitation Act, has given sanction to the equitable view that where a party by the fraud of another has been kept out of the knowledge of his rights, the party defrauded will be put back in the position in which he would have been if he had not been so defended. In this sense, the execution, though long disposed of is re-opened and the application under O. 21, R. 90, is an application in execution.

10. My analysis of the stages of a suit and my interpretation of the words “proceedings in execution” are supported by Thakur Prasad v. Fakir-ullah, 17 All. 106 : (22 I.A 44 (P.C)) (ante), the line of reasoning adopted in which decision and in a number of subsequent decisions was followed by a Full Bench of this Court in Bhubaneshwar Prasad v. Tilakdhari Lall, 4 Pat. L.J 135 : (A.I.R (6) 1919 Pat. 192) (ante). The Judicial Committee pointed out in that decision that the whole of Chap. 19, Code of Civil Procedure (1882), consisting of 121 sections is devoted to “procedure in executions.” This Chapter corresponds to part II comprising Sections 36 to 74 of the CPC (1908), and O. 21 of Sch. 1 and the whole of the Sch. 3 to this Code. Proceedings under these provisions, therefore, should be regarded as proceedings in execution. I would also cite the observations of Das J. in Muhammad Taki v. Fateh Bahadur, 9 Pat, 372 at p. 381 : (A.I.R (16) 1929 Pat. 565 (F.B)):

“Reading the Code as a whole, it seems to me that there is a procedure for suits, a procedure for execution, and a procedure for appeals; and Rr. 3, 4 and 8 apply to suits by their own force and to appeals by force of R. 11; but they do not apply to proceedings in execution as contemplated by Chap. (Part. ?) II and O. 21 of the Code.”

With great respect I would suggest that the view taken by Das J. in Jagdish v. Sureshwar, 6 Pat. L.J 253 : (A.I.R (8) 1921 Pat. 107) (ante), forces him into a decision which is not consistent with the provisions of the Code of Civil Procedure. In the case before him, in an appeal against an order under O. 21, R. 90, an application was made by the appellant to the High Court to record a compromise to the effect that on his paying a certain sum into Court by a particular date the auction sale which was the subject-matter of the litigation should be set aside. In the opinion of his Lordship, the proceeding not being one in execution, the provisions of O. 21, R. 2 were not applicable, but the compromise could be recorded under O. 23, R. 3. Order 23, R. 3, on its term relates to the adjustment of a suit or the satisfaction of the plaintiff by the defendant in respect of the whole or part of the subject-matter of a suit. When the matter arose at the stage of the proceedings under O. 21, R. 90, the suit had terminated in a decree and the rights of the plaintiff whatever they were had merged in the decree. The question of the adjustment of the suit, therefore, could no longer arise, and the provisions of O. 21, R. 2, would appear to have been more properly applicable. This view as urged by Mr. Das J. as he had by then become, at p. 513 of Harihar Prasad v. Gopal Saran, 14 Pat. 488 : (A.I.R (22) 1935 Pat. 385).

11. For the reasons which I have given above, I consider that the rules regarding abatement contained in O. 22 of the CPC did not apply to the appeal before the District Judge. The position, therefore, was that the appeal did not abate by reason of the death of the appellant and the absence of an application for substitution within the period of ninety days, thereafter, and was still a pending appeal at the time when the application for substitution was filed. As has been explained in F.A Mcnaught v. Musammat Saraswati Thakurain*, 13 Pat. 777 : (A.I.R (22) 1935 Pat. 117), such an application is Really an application for being allowed to continue the proceeding [vide also Mt. Gulab Kuer v. Md. Zaffar Hussan Khan, 6 Pat. L.J 358 : (A.I.R (8) 1921 Pat. 180). There is no express provision of law under which such an application can be entertained. This is done under the inherent powers of the Court, and this jurisdiction is discretionary. It was, therefore, open to the District Judge in the present case to consider the application and, if he was satisfied that the application was filed within a reasonable time of the death of the appellant, to permit the applicants to continue the appeal. For the purposes of the present case, it is not necessary to consider what would be the position if the proceeding in execution in which substitution is sought is no longer pending, for instance, having been dismissed for default in prosecution following the death of the original applicant, in which case the question would arise whether the Court is functus officio and cannot entertain such an application.

12. The question as to whether in the present case an appeal lies to this Court against the order passed by the District Judge has not been raised before us. It is not necessary to consider the point as this is obviously a case in which, supposing an appeal does not lie, we must interfere in revision, the ground of interference being that the District Judge under a wrong impression as to the correct view of the law has refused to exercise jurisdiction which was vested in him.

13. In the result, I would allow this appeal, set aside the order of the District Judge, and remand the case to the District Judge to be dealt with in the light of the above remarks. The costs in the case will follow the result.

14. The hearing fee will be assessed at two gold mohars.

15. Sinha, J.:— I agree.

D.R.R

16. Appeal allowed.