any reason, satisfactory or not, the execution of a final decree in a suit fails or is set aside, and the proceedings as regards that execution are taken off the file, the whole suit is discontinued thereby, and further proceedings for the same purpose are to be considered as taken in a new suit. Rajah Mohesh Narain Singh v Kishranund Misser, S. W. R., P. C., V. 7. Along with an application a decree holder is not bound to file a copy of his decree. When a professed purchaser of the decree applies for execution, files a copy and the alleged deed of sale, no presumption arises, from his doing so, of the genuineness of the sale. Khetter Mohun Chuttapodhya v. Issur Chunder Surma. S. W. R., XI. 271. See also notes to sec. 235. Where a case is decreed in one district, and property is attached and sold in execution in another district, without application made by the decree-holder to the Court of the latter district, and without the certificate and other papers being obtained from the former district, as laid down in secs. 224 and 229, the proceedings must be held to be without jurisdiction. But (held by Jackson, J.) where the certificate was sent, whether asked for or not, the execution proceedings are legal, even though the process of attachment was issued by the Court, instead of (as it should have been) on the direct application of the decree-holder. Held (by Jackson, J.) that no particular form being prescribed in law for a certificate, if it contains all the information which it should contain, it is a good certificate, even though wanting in precision. Mookhta Keshi v. Lachmipat Singh Doogor, S. W. R., X. 137. (f) The receiving Court's duties are merely ministerial; it cannot question the decree. Ambaram Harivallabdas v. Himat Singh Kalianji, Bom. E. C., X. 103. The Court that made the decree can alone alter it, see notes to sec. 206. Where a Court executing a decree over-rules the judgment debtor's plea of limitation, and its order is upheld in appeal, and both decisions become final by operation of law, the appellate Court is not competent to go behind these orders, in order to declare that the proceedings previously taken were defective to keep the decree alive. (g) The Court passing a decree cannot interfere with the order of the Court executing it. Mungli Parshad v. Budoosee Singh, S. W. R, II. Mis 17. (h) See Appendix "Execution of Decree in Foreign States." B.-Of Application for Execution. The putting in motion execution of a decree rests with a decree-holder: he must apply to the Court which passed his decree, or to the proper officer appointed by it, or to the Court to which his decree has been sent. The power of refusing execution at the same time against person and property, which Sir Barnes Peacock held existed under the old Code, has been expressly confirmed. A most important change has been introduced with reference to decrees for money or.other property; no second application will be granted unless the Court is satisfied that on the application immediately preceding due diligence was used to obtain complete satisfaction; no application will be granted after twelve years from date of (a) original decree or decree gained after appeal, (b) of default in instalment for which execution is sought, if decree or subsequent order allow the payment of delivery by instalments. A fresh period of twelve years runs from fraud or force by which judg ment debtor has prevented execution; decrees passed before this Code will, for three years follow the provisions of the old Code as regards proceedings to enforce them. One joint decree-holder may apply for execution for the benefit of all, and Court, when so allowing, can pass orders protecting interests of those who have not joined. Transferees of decrees be executed in manner herein provided within the jurisdiction of any Court in British India. M. 230. B.-Of Application for Execution. Application for execu *See p. 141. †See p. 142. tion. *S 228. §S. 210. See p. 143. (207) When the holder of a decree desires to enforce it,* (i) he shall apply to the Court which passed the decreet (j) or to the officer, if any, appointed in this behalf, or if the decree has been sent under the provisions herein before contained to another Court, then to such Court or to the proper officer thereof.† (k) The Court may in its discretion refuse execution at the same time against the person and property† (1) of the judgment-debtor. Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no subsequent application to execute the same decree shall be granted unless the Court is satisfied that on the last preceding application due diligence was used to procure completet(m) satisfaction of the decree; and the order of the Court granting any such subsequent application shall be conclusive evidence that due diligence was used to procure such satisfaction. And no such subsequent application shall be granted after the expiration of twelve years from any of the following dates (namely)— (a) the date of the decree sought to be enforced, or of the decree (if any) on appeal affirming the same, or (b) where the decree or any subsequent order directs the payment of money or the delivery of property by§ instalments, the date of the default in paying or delivering the instalment in respect of which the applicant seeks to enforce the decree. Nothing in this section shall prevent the Court from granting an application for execution of a decree after the expiration of the said term of twelve years,+(") where the judgment-debtor has by fraud or force prevented the execution of the decree at some time within twelve years immediately before the date of the application. Notwithstanding anything herein contained, proceedings may be taken to enforce any decree within three years after the passing of this Code, unless when the period prescribed for taking such proceedings by the law in force immediately before the passing of this Code shall have expired before the completion of the said three years.|| (0) (Continued on page 144.) by written assignment or operation of law may apply, and where Court thinks fit, obtain execution as if they were original decree-holders. If transfer is due to assignment, notice in writing must be given to transferor and judgment-debtor and their objections beard. Transfer in favour of one of several judgment-debtors, cannot be enforced against the rest. Equities enforcible against original holder are good against transferree; application can be made against representative of deceased judgment-debtor, but he is liable only for property of deceased which has come to his hands and not been disposed of. A new power of compelling him to produce accounts is granted. Applications must contain points noted in section 235, be properly verified, accompanied by inventory of moveable property (if not in possession of judgment-debtor), proper description and specification of share or interest in immoveable property sought to be attached, and accompanied by extract from Collector's register when land is registered therein. In cases of assignment by private contract, Courts must be very careful. When there exists a cross-decree against the assignor in favor of the person who is his judgmentdebtor under the assigned decree, whether the two decrees be decrees of the same Court or not, then the application for the change of decree-holder ought not generally to be granted without the consent of the judgment-debtor, because the introduction, under these circumstances, of the assignee in the place of the assignor might place serious difficulty and embarrassment in the way of the judgment-debtor towards obtaining satisfaction of his own decree. Scarcely any part of a judicial officer's duty calls for the exercise of more care than the duty of considering applications for execution of decrees made by persons claiming to be entitled thereto under some form of transfer. The granting of these applications, without discrimination, is the source of much mischief and prolonged litigation. *U. C. O. C. H. C. p. 17. Miscellaneous Rulings on decrees, their construction, &c. The construction of the terms of a decree will often be the first matter for the consideration of a Court which has to execute it. The following rulings bear on this point, but the reader should also consult notes to sec. 244; and the notes to the sections following. In construing a decree it must be taken as it stands: a Judge cannot go beyond it, nor incorporate anything into it, and a judg. ment-debtor may at any stage of execution proceedings object to pay more than the decree against him awards, although he may previously have made payments in excess of the decree under a mistake. Oolfut Oonnissa Bibi v. Akbar Ali, S W, R, IV. Mis 20. See also Jagdeb Narain Singh v. Court of Wards. S. W. R. 111. Mis. 9. If a party bound by a decree conceives his liability wrongly declared he should apply to the Court who passed the decree to review it. Dwarka Prashad v, Rance B. Nursya, N. W. P. 1870, 184. The officer passing a decree is the most suitable person to construe it afterwards, should any doubt arise as to its meaning. Thus, where the suit was for nizamat lands, and the claim was decreed according to the plaint, the officer passing the decree on petition by the other side after issue of proclamation, declared the decree to give rights over mukadami lands, and this interpretation was upheld. Sheikh Bisharut Ali v. Shah Golam Nazat, S. W. R., IV. Mis. 13. A person to whom the ordering part of a decree gives nothing, acquires no right from his name, entered by mistake in the heading of the decree. Nawab S. Zoynul Abdin v. P. C. Bothrah. S. W. R., XV. 126. If an appeal be inadvertently decreed against four out of five shareholders. it is wrong to recover the entire amount from the shares of the four. J. Hills v. W. M. Barmoni. S. W. R XV. 545. A prospective decree for contingent arrears is quite irregular; a decree declaring a person entitled to recover maintenance monthly cannot be executed except by separate suit, even though the allowance fall in arrears. Mus. J. C. Koer v. B. Koer. N. W. P. 1874. 41. See Syad Latfullah v. Musst. Nasiban, S. W. R., X. 24, where an erroneous decree was given, awarding immediate mesne profits at rate admitted by defendants and larger mesne profits contingently on a higher rate being proved at the time of execution. A Court must presume that a decree was When a judgment-creditor can enforce the them all against the same property, though he may have failed on one. Mohama C. Biswas v. Nil Komal Ghose, S. W. R., VI. 239. When a plaintiff sues as agent, and the suit is dismissed on the ground that it should have been brought in the name of the principal, execution for costs &c., cannot be issued against the principal, his name not appearing in the decree, and there being no evidence that the suit was instituted or prosecuted by his directions. Bhobo Tarinee Dassia v. Madhub Chunder Dutt, S. W. R., VII. 143. Similarly when the manager of a factory, who had executed a bond in respect of sums owed by him on account of factory expenses, left the service of the proprietor, and an ex parte decree was obtained on the bond against another manager, the decree could not be executed against the property of the principal, as there was nothing in it to connect the judgment-debtor (the manager) with him. Agra Bank v. Devi Parshad S. W. R. XII. 208. Nor can a decree be executed against a person who, though originally named in the suit as defendant, was not named in the decree as one against whom the decree was given. Bhoobun M. D. Chaudrain v. B. M. Roy, S. W. R., VII. 62. Execution under process of a Civil Court is not ipso facto legal, e. g. when taken against those who were not parties to the decree, or are distinctly exempted from the operation of the decree. Umrit Lall Bose v. oornbee Dassee, S. W. R., II. Act X. R., 86. Execution-creditors are responsible for a second execution after the decree has been satisfied, even when the proceeds were paid over by the officer of the Court to the mukhtar of the execution-creditor, who had not authority to receive them, and were misapplied by him; the judgment creditor applied in ignorance of this fact, but was not absolved from liability, although the execution-debtor was from liability to further payment. Partub C. Buroah v. B. Debi, Marsh. 59. When a party has obtained a decree for possession of land, the mere allegation of the judgment-debtor that he is not in possession is not sufficient to nullify that decree and render it unfructuous. Radha B. S. Deb v. B. R. Debi. S. W. R., IV. Mis. 1. A decree for possession once satisfied by plaintiff's being put in actual possession cannot afterwards be revived or re-executed by his being dispossessed. Khatoo Bibi v. Farak Ali, S. W. R. VI. Mis. 108. Where defendant appealed, and appeal was struck off after petition by both parties that they had come to settlement, the original decree still stood good except so far as judgment-creditors were debarred from executing it by their own agreement. Mewa Sing v. Azizuddin Khan, S. W, R., XIII. 311. Neither party can fall back upon a decree the effect of which has been nullified by mutual consent. Musst. Indro Koer v. Sheikh. A. Barkat, S. W. R., XIV. 146. A decree-holder is not limited as a rule as to what property he shall proceed against. Thus, when a plaintiff obtained a decree for a third of the whole of the land in which she was entitled to share, she was not held bound to execute it first in respect of the lands in her possession, which defendant alleged, exceeded the one-third decreed. Radha K. Pangah v. B. S. Dassia, S. W. R., XIII. 9; and a decree to recover a mortgage debt by sale of two mortgaged premises may be executed against both or either. S. W. R. XV. 170. So also a decree-holder who, under the terms of his bond, is entitled to proceed against any property of the judgment-debtors, is not estopped by a petition filed by him upon the attachment of certain property belonging to the judgment-debtors, praying that the said property, if sold, may be sold with notice of his lien upon it, from proceeding against other property of the judgment-debtors. Raj Coomar Sing v. Birj Mohun Thakoor, S. W. R., II. Mis., 17. A co-defendant was held entitled to proceed in execution without a fresh suit when the decree stated that he was entitled to recover purchase-money of a patni tenure from the zamindar defendant. Preo Lal Gosain v. G. T. Dassia S. W. R., XIII, 161. A decree for possession of land and moveable properties appealed as regards the moveables alone, and modified was held not to remain in force for the possession of the land. Sreenath Mozumdar v. B. M., S. W. R., XIII, 309. It is wrong to refer to an execution department the determination of the value of a house when a Court is decreeing a suit in satisfaction of a decree-holder's claim from the proceeds of that house. Lala Mitterjeet Sing v. S. Dass. S. W. R. XV. 124. A judgment-debtor required by a decree to render account can only account for money come into his hands; a decree holder can shew this has not been done. Woomenath Roy Chaudhri v. Sreenath Singh S. W. R. X V. 260. A decree in one suit in which no reference is made to the decree in another suit cannot be pleaded as any bar to the execu tion of such other decree. Bhugwan Dass. v. Gourie Shankar, S. W. R. IX, 596. A joint decree remains a joint decree for ever, any act or conduct of decree-holder notwithstanding. Jagarnath Singh v. Sheikh Ahmadullah, S. W. R., VIII. 132. A decree-holder alone can absolve one or more of joint judgment-debtors, and proceed against one or as many of them as he pleases. This will not affect the position of the debtors inter se, or their mutual responsibilities. Gopal Parshad v. Ramawugra Singh, S. W. R. V. Mis 9. Chaudhri S. Wahed Ali v. M. E. Hussain. B. L. R., XII 500. If a landlord and his gomashta are declared jointly liable, the decree-holder is not wrong in law in proceeding against the gomashta in the first instance. Sreenath Ghose v. Sahib Ram, S. W. R., XII. 305. Though a decree-holder has a right to put joint and common decrees in force against one or all of the defendants in the order he thinks fit, the claim to be enforced must be limited to the particular lands or properties with which particular defendants are clearly shown to have been connected. The application for dividing the amount of a joint decree should be made, and the order for such division obtained, at the time of the decree but not afterwards. Bulwant Singh v. Sheo Sahay Singh. S. W. R., II. Mis., 52. Though a decree may be in words a joint and several decree for mesne profits, if any one of the defendants has been in possession only of particular land or a mauzah, his liability will in equity extend only to such land, &c., Ganesh Datt v. Balwant Singh S. W. R., XIV. 175. A Court cannot treat a joint decree to which several defendants have submitted as a several decree against the different defendants in respect of their propor (1) Separate applications to execute the same decree do not constitute separate causes or suits. Saroda Moyee Barmani v. W. M. Barmani, S. W. R., VIII. 9. If submission has been made to the jurisdiction of a Court, it is too late to raise the plea at the time of execution. A defendant who appeared in a suit, and chose not to raise the plea, must be held to have submitted. Ex parte Manohar Bhirorao Potanis, Bom. Rep. II. 374. It is not competent to a Court to with-hold execution until the expenses are paid. Kisto Kishore tionate shares, however equitable such an order may be. Musst. Omitool Koer v. Musst. Somajee Bibi. S. W. R., VI. Mis. 40. The payment by a judgment-debtor jointly and severally liable of his own quota of an instalment under a decree will not modify his joint liability if default be made by the other judgment-debtor: an order to protect the estate of the former is improper. Salig Ram v. Baboo Ram Sewak., Agra, R. I. Mis. 14, The property of a debtor arrested in execution of a decree and released at the creditor's request can be taken again under attachment in the same decree. Janki Sing Roy v. Kaloo Mundle, S. W. R.. IX. 178. A decree ordered a defendant to give in certain acounts within a specified period; defendant survived the period without any proceeding being taken against him, it was held on his death that the decree was binding on him personally and could not, after his death, be executed against his widow or representative. Baboo Mookhee Dasi v. Rajah S. K. Roy S. W. R. XII. 495. Money recovered under a decree or judgment cannot be recovered back in a fresh suit or action, whilst the decree or judgment under which it was first recovered remains in force. But this rule of law rests upon the ground that the original decree or judgment must be taken to be subsisting and valid, until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, the money recovered under it ought to be refunded, and is recoverable either by summary process or by a new suit. Doorga Parshad Roy Choudhry v. Tara Parshad Roy Choudhry, S. W. R. P. C. III. 2. Ghose v. Soorjonath Sircar, S. W. An application for the execution of a decree which has been already executed is an offence under sec. 210, and not under sec. 209 I. P. C. Queen v. Begum Maktoon, S. W. R., XII. Cr. 37. (5) Applications for the execution of decrees of appellate Courts should be made to the Court which passed the original decree, sec. 583. (k) It is the duty of the decree-holder to move a Court from time to time if he sees that it takes no |