Authored By : Macpherson, T. Ameer Ali

Macpherson and T. Ameer Ali, JJ.

1. The decree-holder, the respondent in this appeal, hadobtained a decree for possession of a plot of land, for the removal of a hutwhich stood thereon, and for costs. He first took out execution for costs, andon the amount being realized, the case was struck off on the 5th of June 1889as disposed of. On the 17th March 1890, he applied to execute the decree forpossession and for the removal of the hut, and was met by the objection thatthe decree could not be executed in parts; that the order of the 5th of Junehad disposed of the whole case, and that under the provisions of Section 43 ofthe Civil Procedure Code, read with Section 647, a further application forexecution could not be entertained. The Munsif: and the District Judge onappeal overruled the objections, and it is now contended that they were wrongin doing so, having regard to the provisions of Sections 43 and 373 of theCode.

2. In our opinion Section 43 does not apply to proceedingsin execution of a decree, and when a decree gives reliefs of a differentcharacter, such as a decree for possession and a decree for costs, we seenothing in the Code of Procedure which prevents separate and successiveapplications for execution as regards each of them. In some cases separateapplications to different Courts would be necessary. If the judgment-debtorresided out of the jurisdiction and had no assets within it, the decree forcosts would necessarily be executed in the district in which the assets were,although the decree for possession would be executed by the Court which passedthe decree. In the absence of any provision in the Code directing that theapplication must be, when possible, to execute the entire decree, howevervarious the reliefs granted may be, we must hold that the second application inthe present case is not barred on the ground that the decree-holder did not inhis first application apply to execute the whole decree. The order of theCourt, striking the case off as disposed of, obviously had reference only tothe particular application before it.

3. As regards the provisions of Section 373 of the Code inconnection with which it was argued that, as the first application was struckoff without any permission to make a fresh one for the unexecuted portion ofthe decree, a fresh application could not be entertained, our attention hasbeen called to a decision of a Division Bench of this Court in Wajihan v.Biswanath Pershad (Ante, p. 462) in which it was held, differing from theAllahabad High Court Radha Charan v. Man Singh I.L.R. All 392 that Sections 373and 374 did not apply to execution proceedings. We agree with the learnedJudges who decided that case, and we think that the grounds for holding thatSections 373 and 374 do not apply, are applicable to Section 43 also. Theappeal is dismissed with costs.

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Radha Pershad Singvs. Radha Kishen Lall (24.05.1891- CALHC)