Beverley, J.

1. This is a second appeal from an order of the DistrictJudge of the 24-Pergunnahs, reversing an order of the First Subordinate Judgeof that district, by which he bad held that a certain application to execute adecree was barred.

2. It appears that there had been a previous application toexecute the decree, and in that proceeding the judgment-debtor had appeared andobjected that the decree-holder had assigned his rights under the decree to athird person. Upon that the pleader for the decree-holder intimated that hewould not proceed with the application for execution, but would advise hisclient to bring a regular suit to set aside the alleged deed of assignment. TheSubordinate Judge therefore dismissed that application for non-prosecution. TheFirst Court was of opinion that the dismissal of that application operated as abar to the present application; but this view was overruled by the DistrictJudge.

3. On appeal before us it is contended-

(1) That the order on the previous application was an orderto the effect that execution could not proceed at the instance of thedecree-holder, and until that order was set aside, it operated as a bar to anysubsequent application by him.

(2) That if the action of the decree-holder be construed asa withdrawal of the application, that withdrawal was made without leave of theCourt, and therefore under Section 373 of the Code of Civil Procedure (readwith Section 647) no subsequent application to execute the decree could beentertained.

4. As regards the first argument, it seems to us that therewas no finding that execution could not proceed at the instance of the originaldecree-holder such as would bar a subsequent application by him. No enquiry onthat point seems to have been made. All that appears is that the decree-holderhaving been met by a certain objection, declined to proceed with his application,which was accordingly dismissed or struck off for non-prosecution. Such anorder could not operate as res judicata.

5. On the second point the learned pleader for the appellanthas relied on several decisions of the Allahabad High Court namely Kifayat Aliv. Ram Singh I.L.R. All 359; Sarju Prasad v. Sita Ram I.L.R. All. 71; FakirUllah v. Thakur Prasad I.L.R. All. 179 and Radha Charan v. Man Singh I.L.R. All392. The last case is the decision of a Full Bench of the Allahabad Court, andalthough not binding upon this Court, it is entitled to our utmost respect andmost serious consideration. It appears to have been expressly dissented fromrecently by a Division Bench of this Court in Wajihan v. Bishwanath PershadI.L.R. Cal. 462; and the decision of that Bench has been followed by two otherBenches in Radha Kishen Lall v. Radha Pershad Sing I.L.R. Cal. 515 and inLaljee Sahoo v. Bysakhi Lall Misc. App. 45 of 1891. It also appears that aDivision Bench of the Bombay High Court in Tarachand Megraj v. KashinathTrimbak I.L.R. 10 Bom. 62 has expressed an opinion opposed to that of theAllahabad Court.

6. In the Full Bench case referred to, Edge, C.J., remarksas follows: "It has been argued here to-day that Section 373 does notapply to proceedings in execution. Unless we are to apply, so far as may be,the principles provided for the guidance of Courts in the other sections of theCode of Civil Procedure, there would, in a great number of cases, be noprovision for what should be done in execution proceedings, as the sectionswhich exclusively relate to execution proceedings are deficient and far fromexhaustive, if we are to regard them as the only sections which supply theprocedure in execution cases. In my opinion Section 647 makes Section 373applicable. I think that suit and appeal in that section apply to thoseproceedings generally known as a suit and an appeal, that is, to suits andappeals in the strict acceptation of the terms, and that in Section 647 thewords suit and appeal were not intended to cover proceedings for theenforcement of rights decreed in a suit or appeal." The learned ChiefJustice then goes on to refer with approval to the decisions in the cases ofSarju Prasad v. Sita Ram in I.L.R. All 71 and Fakir Ullah v. Thakur Prasad I.L.R.All 179. The other Judges of the Full Bench (Straight, Brodhurst, Tyrrell, andMahmood, JJ.) concurred with the Chief Justice.

7. Now the first paragraph of Section 647 of the Code runsas follows:

The procedure herein prescribed shall be followed, as far asit can be made applicable, in all proceedings in any Court of civiljurisdiction other than suits and appeals.

8. It appears to us that this provision of the Code wasintended to apply to matters such as applications for probate, certificates ofguardianship, or to collect debts, which, especially when contested, partake ofthe nature of suits, and to which the procedure laid down in the Code isclearly more or less applicable. We do not think that the term"proceedings other than suits and appeals" was intended to include orhave reference to proceedings in execution of decree. Such proceedings havebeen frequently held to be proceedings in the suit, and are expressly describedas such in the Code, as, for example, in Section 3. Moreover, the Code laysdown a procedure for the execution of decrees, viz., chapter XIX, comprisingSections 223 to 343; and it would scarcely be necessary for the Legislature todeclare again in Section 647 that those sections shall be followed "as faras may be practicable" in the execution of decrees.

9. But, whether or not Section 647 applies to executionproceedings, we entertain very little doubt that that section cannot operate toextend the rule laid down in respect of a suit in Section 373 to an applicationfor execution. In the first place the rule laid down in the second paragraph ofthat section is not a matter of procedure, but a substantive rule of law. It isa rule based on the general principle that no person shall be allowed toinstitute successive suits on the same cause of action. But that rule is notapplicable to execution proceedings, in which the Code itself (Section 230, forexample) contemplates successive applications to execute the same decree. Andeven if the rule laid down in Section 373 be held to be a rule of procedure, itis clear to our minds that it is not applicable to proceedings in execution,inasmuch as the principle of the rule is opposed to the principle of the Codein regard to those proceedings.

10. For these reasons we are unable to concur with thedecision of the Allahabad Court, and as that decision has not been followed byany Bench of this Court, we think it unnecessary to refer the matter for thedecision of a Full Bench.

11. This appeal will be dismissed with costs.

.

Bunko Behary Gangopadhya and Ors. vs. Nil MadhubChuttopadhya (30.06.1891 - CALHC)