1. We are invited in this Rule to set aside an order bywhich the Court below has refused an application for execution of a decree byan assignee thereof. There is no dispute as to the circumstances under whichthe order in question has been made. On the 16th September 1907, one MohimChandra Das, obtained a decree for money against two persons, Raj Mohan Das andBishnu Chandra Das. A portion of the judgment-debt was realised in course ofexecution taken out in 1907 and 1903. Thereafter, on the 17th November 1908,the decree-holder transferred the decree to the present petitioner, AsimMandal. On the 1st January 1909, an application was made on behalf of thetransferee for leave to execute the decree. This was dismissed for default onthe 5th June 1909. An application was then made for revival of the applicationfor execution. This also was dismissed. On the 15th September 1909, thepetitioner presented a fresh implication for execution of the decree. Objectionwas taken, that as the previous application has been dismissed for default, thesecond application was not maintainable. On the 19th March 1910, the SmallCause Court Judge gave effect to this objection, and dismissed the application.On behalf of the assignee of the decree, the validity of this order has beenquestioned on the ground that successive applications for execution are allowedby the Civil Procedure Code of 1908, and that the mere fact that the previous.Application had been dismissed for default, was not sufficient to bar asubsequent application, inasmuch as Order IX, rule 9 of the Code is notapplicable to orders of dismissal for default in cases of applications forexecution of decrees. The learned Vakil for the judgment-debtors has argued inanswer to this contention that the effect of section 141 of the Code is torender Order IX, rule 9 applicable to execution proceedings and thatconsequently successive applications for execution of decrees are notcontemplated by the new Code. He has further argued that section 141 has, inthis respect, materially altered the law as embodied in section 647 of the Codeof 1882, and in support of this view, he has relied upon the observations ofthis Court in the case of Safdar Ali v. Kishun Lal : 12C.L.J. 6 : 7 Ind. Cas. 241 [LQ/CalHC/1910/226] . After careful consideration of the arguments addressedto us on both sides, we have arrived at the conclusion that successiveapplications for execution of a decree are not barred by the provisions of thenew Code, and that the order of the Court below cannot be sustained.

2. It has not been disputed before us, that under section047 of the Code of 1882, successive applications for execution could be made inrespect of the same decree. Bunko Behary v. Nil Madhub : 18C. 635. The contrary view, taken in Bombay and Allahabad, Pirjade v. Pirjade 6B. 681 and Fakir Ullah v. Thakur Prasad 12 A. 179, was superseded by theintervention of the Legislature [Act VI of 1892 by which an Explanation wasadded to section 647]. Shortly after the enactment of the Civil Procedure CodeAmendment Act of 1892, the decision of the Allahabad High Court in the caselast mentioned was reversed by the Judicial Committee. Thakur Prasad v. FakirUlla 17 A. 106 : 22 I.A. 44. The Judicial Committee pointed out that section647 of the Code of 1882 was, on its true construction, inapplicable toexecution of decrees, and this was so, independently of the legislation of1892. There is no force, therefore, in the contention of the learned Vakil forthe judgment-debtors that the omission of the Explanation, when section 647 ofthe Code of 1882 was reenacted with a slight variation as section 141 of theCode of 1908, does in any way indicate a change in the law. The Explanation hasbeen omitted for the obvious reason that it was superfluous, as pointed out bytheir Lordships of the Judicial Committee. Whether section 141 has, in anyother respect, altered the law, it is needless to discuss on the presentoccasion. The decision in Safdar v. Kishun Lal : 12 C.L.J. 6: 7 Ind. Cas. 241 [LQ/CalHC/1910/226] is clearly distinguishable. The question there raised was,whether rule 103 of Order XXI of the Code of 1908, did, in any way, bar there-hearing of an application in an execution matter which had been dismissedfor default. The application had apparently been made by a claimant under rule97, and upon the dismissal of that application for default, it appears to havebeen argued that it could not be revived and the only remedy of the claimantwas by a regular suit as provided in rule 103. This contention was overruled.The question raised, before us, namely, whether successive applications forexecution of a decree are admissible, even though a previous application mayhave been dismissed for default, did not arise for consideration in that case,and the observations made in that judgment cannot be rightly treated asconclusive upon the question now raised. It is worthy of note that under theCode of 1882 it was expressly held in Tirthasami v. Annappayya: 13 H. 131, that the dismissal of a petition for executionfor default, does not bar a fresh application for execution. To the same effectwere the decisions in Dhonkal Singh v. Phakkar Singh 15 A. 84 and Hajrat v.Valilunissa 18 B. 429. We are not prepared to accept as well founded thecontention of the judgment-debtors, that the law has, in this respect, beenchanged by the new Code. If we were to accede to the contention of thejudgment-debtors that the procedure laid down for suits is applicable in itsentirety to execution proceedings, complications of the gravest character mightarise. It is sufficient to mention that if we were to uphold the view putforward by the defendants, Order II, rule 2, (corresponding to section 43 ofthe Code of 1882), Order IX (corresponding to sections 96 to 109 of the Code of1882), Order XVII, rules 2 and 3 (corresponding to sections 157 and 158 of theCode of 1882) and Order XXXIII, rule 1 (corresponding to section 373 of theCode of 1882) would all become applicable to applications for execution ofdecrees. Such a view would necessarily imply a fundamental alteration in thelaw of which we can find no indication in the new Code. We must, therefore,overrule the contention of the judgment-debtors that the application forexecution presented on the 15th September 1909, cannot be entertained, merelybecause a previous application of the same description, made on the 1st January1909, had been dismissed for default on the 5th June 1909.

3. The result, therefore, is that this Rule must be madeabsolute and the order of the Court below discharged. The case will be remittedto the Small Cause Court Judge in order that he may deal with the applicationfor execution on the merits. The petitioner is entitled to his costs both hereand in the Court below. We assess the hearing fee in this Court at two goldmohurs.

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Asim Mandal vs. RajMohan Das (22.12.1910 - CALHC)