1. We are invited in this appeal to set aside an order bywhich the District Judge, in concurrence with the Court of first instance, hasrefused execution of a mortgage-decree made by consent of parties on the 5thFebruary 1902. The judgment-debtor, now respondent, objected to the executionof the decree, substantially on three grounds; namely, first, that the decreewas made without jurisdiction, secondly, that the decree had not been madeabsolute; and thirdly, that the application for execution was barred bylimitation. The Courts below have concurrently held that as the decree has notbeen made absolute, it was incapable of execution. Upon the present appeal bythe decree-holder, the learned Vakil for the judgment-debtor has sought tosupport the decision of the Courts below not only on the ground mentioned butalso on the additional ground, which was over ruled by both the Courts below,that as the decree was made without jurisdiction, it was incapable ofexecution. Two questions, therefore, require consideration namely, first,whether the objection can be entertained in these proceedings that the decreeis incapable of execution because it was made without jurisdiction; andsecondly whether it can be executed although it has not been made absolute.

2. In so far as the first of the points is concerned, it ismanifest that it does not arise for examination in execution proceedings. Aspointed out by the Court in the case of [Nogendra Bala Chowdhrani v. TheSecretary of State for India 10 Ind. Cas. 532] [LQ/CalHC/1911/200] , where the earlier authoritieson the point will be found reviewed, it is not open to a Court of execution toconsider the validity of the decree of which execution is sought. The learnedVakil for the respondent has, however, suggested that it is competent to aCourt of execution to refuse execution of a decree on the ground that it wasnot passed by a Court of competent jurisdiction. We are unable to accept thiscontention as well founded. Section 41 of the Indian Evidence Act provides thatany party to a suit or other proceeding may show that any judgment, order ordecree, which is relevant under section 40, 41 or 42 and which has been provedby the adverse party, was delivered by a Court not competent to deliver it orwas obtained by fraud or collusion. The application of this rule, it will beobserved, is limited only to cases in which a decree is treated as relevantunder section 40, 41 or 42 of the Indian Evidence Act. None of these sectionshas any application to execution proceedings. Section 40 deals with thequestion of relevancy of a judgment, order or decree as barring a second suitor trial. Section 41 relates to the relevancy of a judgment in rem; while,section 42 deals with the question of relevancy and effect of judgmentsrelating to matters of a public nature. When, however, an application is madefor execution of a decree, the execution proceeding is a continuation of thesuit, it is incumbent upon the Court to execute the decree, because it is theduty of the Court to give to the successful party the fruits of the litigation.Consequently, the principle which underlies the case of Rajib Panda v. LakhanSendh 27 C. 11 : 3 C.W.N. 660 and Nistarini v. Nundo Lall 26 C. 891 : 3 C.W.N.670, has no application to proceedings in execution of decrees. The inferenceis irresistible that it was not open to the judgment-debtor to take exceptionto the execution of the decree upon the allegation that the decree had not beenpassed by a Court of competent jurisdiction.

3. In so far as the second objection taken by thejudgment-debtor is concerned, it is, in our opinion, entirely unsubstantial.The decree was made by consent of parties on the 5th February 1902, and was inthese terms. The judgment-debtor was to pay Rs. 1,200 to the decree-holder byinstalments of Rs. 15 a month; upon failure to pay three instalments thedecree-holder was to become entitled to take out execution, without any orderabsolute. It is contended on behalf of the decree-holder that the contingencycontemplated by the parties has happened and he is entitled to take outexecution without any order absolute. In reply, it is argued by thejudgment-debtor that unless an order absolute is made under section 89 of theTransfer of Property Act, the decree is incapable of execution. There is, inour opinion, a two-fold answer to this contention. In the first place, themortgage-decree was payable by instalments and was consequently not a decree interms of section 88 of the Transfer of Property Act, so that, as explained inBechoo Singh Bichharam Sahu 10 C.L.J. 91 : 1 Ind. Cas. 677 [LQ/CalHC/1909/127] , the provisions ofsection 89 have, by their very terms, no application. In the second place,although the Court may have inherent jurisdiction to make an order absoluteeven in cases of mortgage-decrees payable by instalments, the judgment-debtormay, as he has done here, waive his right to ask for such an order. As waspointed out in the case just mentioned, the object of an order absolute is toafford to the mortgagor an opportunity to show that the preliminary decree hasbeen satisfied. Consequently, when an application for an order absolute is madeby the mortgagee, decree-holder in a case not falling strictly within theletter of section 88 of the Transfer of Property Act, as it is entirely for thebenefit of the mortgagor, it is competent to the Court to give notice to thejudgment debtor and to deal with the application on the merits. But it does notfollow that an order absolute is necessary in the case of every conditional orcontingent decree; at any rate, there is nothing to debar the judgment-debtorfrom waiving the advantage of an order absolute, because there is nothing to preventthe parties to a litigation from waiving the advantage of a particular law orrule, if that law or rule is not based on public policy and is intended solelyfor the benefit or protection of an individual in his private capacity [Bechoov. Bichharam 10 C.L.J. 91 : 1 Ind. Cas. 677] [LQ/CalHC/1909/127] . As we have already explained, anorder absolute is entirely for the benefit of the mortgagor, and if hedeliberately waives his right in this behalf, it is not open to himsubsequently to turn round and contend, as is done in this case, that thedecree-holder is not entitled to execute the decree without an order absolute.It follows, therefore, that the two grounds on which execution is resisted arewholly unfounded and must be overruled. The question of limitation, however, hasnot been considered by the District Judge, and must be investigated. We may addthat it has not been suggested here that any payments have been made by thejudgment-debtor towards the satisfaction of the decree, but if any suchpayments have been made, it will be open to the judgment-debtor to prove themin accordance with law.

4. The result is that this appeal is allowed and the orderof the District Judge set aside, the case will be remitted to him in order thatthe question of limitation may be considered. The appellant is entitled to hiscosts both in this Court and in the Court of appeal below. The costs in theCourt of first instance will abide the result. We assess the hearing fee inthis Court at three gold mohurs.

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Biswa Nath Prosad Mahatavs. Bhagwandin Pandey (21.04.1911- CALHC)