to establish his right to represent the deceased. Wooma Churn Mokerjee v. Luckhee Narian Roy Chaudhri, S. W. R., I. Mis., 10.

Where the representatives of a deceased

decree-holder applied for execution of his decree, and were directed to furnish proof that they were the representatives of the deceased, and did so, and then their execution case was struck off the file: Held that the steps taken by them were bona fide steps taken to keep the decree alive. Adina Bibi v. Sububunissa Bibi, B. L. R., III. App. 142.

A plaintiff who had obtained a decree having died, and the defendant in the suit being one of the representatives of the deceased plaintiff, and as such entitled to succeed to a share in his estate, : Held that the mere fact of the defendant being one representative of the deceased did not debar the other representatives from executing the decree according to their rights. J. P. Wise and others v. Abdool Ali and others, S. W. R., VII. 136. (t) This section is merely directory. Chinam Hyyappa v. Shaik Apoor Ahmud Khan M. H. C., I. 459, and a Court may in its discretion refuse execution. Davis v. Middleton, ib. VIII. 283.

The

(u) In the case Penning v. Devendro Nath Moitra, ib. IX. 549, Sir B. Peacock, C. J., on the similarly worded sec. 19, Act XI. 1865, ruled that it was not intended that a debtor should be protected from arrest until after he had a reasonable time for returning to his home. Legislature never intended, when it authorized immediate execution, to give the judgment-debtor a fair chance of getting away. The Madras High Court, in the case Appasamy Pattar v. P. E. Govine Namblar, M. H. C., VII. 145, ruled exactly opposite, and the words in sec. 642 of the present Code seem equally positive as to the immunity from arrest of parties to a suit, eundo, redeundo et morando. (v) Moveable property beyond the local limits is not subject to this section. definition of moveable property see note (c) page 21.

For

(n) Payments made otherwise than through the Court, in adjustment of a decree, cannot be recognized as keeping alive the decree. Kedarnath Mahata v. Heralol Mundul, S. W. R., IV., Mis. 21. A decree-holder who was not barred by lapse of time, in seeking to execute his decree was opposed by the judgmentdebtor, on the ground that the decree had been seized and sold by the Deputy Collector in execution of a decree of that functionary's Court, and that he himself (the judgment-debtor) had become the purchaser thereof. Held that these pro

ceedings amounted to an adjustment out of Court, which, under sec. 258, could not be recognized by the Court unless certified to it by the judgment-creditor himself.

An intimation to the Court of a contemplated satisfaction of the decree by arbitration, on which intimation the execution case was removed from the file, would not preclude the decree-holder from suing out execution again, unless it be proved on enquiry that the result of the private arbitration was a satisfaction of the decree in the mode contemplated by the parties. Choonee Lall v. Doorga Pershad, 3 Agra Rep., 252.

Payment to a Court officer arresting a judgment debtor under a warrant is an adjustment through the Court. Bidhoo Bibi v. Kishub Chunder Babu, S. W. R., IX. 462.

But the following acts have not been considered adjustments within the meaning of this section.

(1) Letter from a decree-holder to his vakeel desiring him to certify an adjustment to the Court. Thakoor Lall Misri v. Kanhia Lall Teewaree. ib., VII. 510. (2) Akistbandi on which suit was brought by the plaintiff in the Court. Muddun Mohan Mittra v. Bibi Pirbuxun, ib. VII. 85.

(3) A letter purporting to be a release of the remainder of decree given by plaintiff at request of defendant, without any consideration, and on which no adjustment had been made through the Court. Bheebun M. Banerjee v. Sados Charan Sircar. B. L. R., VI. 339. In Dwarkanath Doss, v. Unnoda Charan Doss, S. W. R., VIII 319, it was held that where several of the acts requiring to be done in execution of a decree are such as can be done through a Court, and where all of them are acts, the doing of which may be certified to the Court by the person in whose favor the decree was made, the policy of this section is to exclude the reception of evidence upon the point, or any question arising out of evidence before the Court.

If a judgment-debtor chooses to pay the money without being careful to have it certified to the Court, he must take the risk of being compelled to pay it again. Bhya Bhoop Nath Sahai v. Kunwan, ib.

VII. 134.

In Bharat Chunder Roy v. Nawab Nazeer Ali Khan, ib. X. 334, it was held that the purchase of a plaintiff's decree by a defendant, which had not been certified to the Court, could not be recognized by the Court executing another decree of the plaintiff against the same defendant.

This section, in the case Faquir Chand Bose v. Mudden Mohun Ghose, B. L.R. (F.B.) IV. 130, was held not to debar a creditor from coming into Court and proving payments under a decree which had not been certified to the Court. Mr. Justice Turner, in commenting upon this section in the Bill, observes that very great hardship has in some cases been caused by the provision that no satisfaction of a decree, in part or in whole, shall be recognized by a Court executing the decree unless the payment or adjustment be certified. Debtors frequently pay to a decree-holder sums on account, on the faith of the decree-holder's subsequently admitting the payment; and where the Courts are at a distance, it can be understood that a poor man would rather take this risk than lose a day's labour, or miss a favorable opportunity for ploughing, imperil a crop, the spes anni, which might irretrievably be damaged by his absence. The Courts have in some instances allowed the judgment-debtor to receive from the decree-holder sums paid out of Court in satisfaction of the decree, and not certified, as money had and received, to the judgment-debtor's use; but this is manifestly opposed to the spirit, if not to the letter, of Act XXIII. of 1861, section 11, corresponding with sec. 244 of this Bill; and in view of a ruling of the Privy Council, Sudasiva Pellai v. Ramalinga Pellai, I. L. R., P. C. I. A., 219, it may be questioned hereafter whether such a suit is maintainable.

or

But if the law makes it imperative on a decree-holder to certify, will not a failure to certify give a cause of action on which to found a suit?-ED. Orders under this section are open to appeal, sec. 588.

(a) The portion of this sec. that relates to the recovery of wives is not extended to Mufassil Small Cause Courts. The provisions of this section will be found illustrated by the case Gutha Ram Mistri v. Moheeta K. A. Domonee, B. L. R. XIV. 298, where Mr. J. Markby held that in suit by a husband for restitution of conjugal rights, a decree that "the case be decreed, awarding the plaintiff to take defendant as his married wife," is not a proper form of decree.

The decree may order the wife to return to her husband's protection, but such a decree is not one which can be enforced in the manner provided by sec. 259. In the Panjab the order is that these cases are only to be heard by experienced officers with full powers, Panj. C. O. I. 153.

A decree for restitution of conjugal rights under the Parsi Marriage and Divorce Act is enforceable only in the manner provided in sec. 36 of the Act; such provision is in substitution of, and not in addition to, the ordinary remedies provided by sec. 259. Ardasir Jehangir Framji v. Avabai, Bom. H. C. R., IX.

290.

(y) Not to extend beyond six months, sec. 342.

(2) Plaintiff having only partially succeeded in a suit against R., G. and others, for possession of certain land with mesne profits, appealed to the High Court, who gave him a decree with costs, upon this all the defendants except R. and G. applied for a review, and obtained a modification of the High Court's judgment such as left the lower Court's decree standing against R. and G. alone. Plaintiff then applied for execution. Held that the only thing that the plaintiff could do in these circumstances was to ask for delivery, in the mode prescribed in sec. 264 Code of Civil Pro. of the shares and interest of R. and G., but that the Court in execution was not authorized to make any enquiry into the extent or amount of those shares in relation to the other defendants. Annoda P. Mooky and others v. Troyluckho Nath Paul Chaudhri and others, S. W. R., XIII. 123. Where a decree is partly for a share of land in the occupancy or khas possession of the defendants, and partly for a share of land in the occupancy of ryots, the decree as to the former can only be executed according to sec. 223, and as to the latter, according to sec. 264. Ranee Sama Soondery Debea v. Jardine, Skinner and Co., ib. VII. 376.

This section is no bar to a person being put into actual possession under sec. 263, when necessary. Adoremonee Dossee v. Prem Chand Mussaat. ib. IX, 454. (a) Where a decree merely ordered that an embankment should be lowered to its proper height, and the nazir in addition caused breaches or holes to be cut in the embankment so lowered, because he thought them necessary for the protection of the bund from the flow of water over its surface. Held that this was not done in execution of the decree. Rash Behari Lall v. Bibi Wajuna and others, ib. XI. 516.

In execution of a decree against A., C. seized certain moveable property which was claimed under sec. 278 by B., who was part owner of the property. B.'s claim was rejected, and the sale proceeded as that of the right, title, and interest of the debtor; no mention was made of B.'s claim, and the property was made over