In our opinion Section 43 does not apply to proceedings in execution of a decree, and when a decree gives reliefs of a different character, such as a decree for possession and a decree for costs, we see nothing in the Code of Procedure which prevents separate and successive applications for execution as regards each of them. In some cases separate applications to different Courts would be necessary. If the judgment-debtor resided out of the jurisdiction and had no assets within it, the decree for costs would necessarily be executed in the district in which the assets were, although the decree for possession would be executed by the Court which passed the decree. In the absence of any provision in the Code directing that the application must be, when possible, to execute the entire decree, however various the reliefs granted may be, we must hold that the second application in the present case is not barred on the ground that the decree-holder did not in his first application apply to execute the whole decree. The order of the Court, striking the case off as disposed of, obviously had reference only to the particular application before it.
Macpherson and Ameer Ali, JJ.
1. The decree-holder, the respondent in this appeal, had obtained a decree for possession of a plot of land, for the removal of a hut which stood thereon, and for costs. He first took out execution for costs, and on the amount being realized, the case was struck off on the 5th of June 1889 as disposed of. On the 17th March 1890, he applied to execute the decree for possession and for the removal of the hut, and was met by the objection that the decree could not be executed in parts; that the order of the 5th of June had disposed of the whole case, and that under the provisions of Section 43 of the Civil Procedure Code, read with Section 647, a further application for execution could not be entertained. The Munsif: and the District Judge on appeal overruled the objections, and it is now contended that they were wrong in doing so, having regard to the provisions of Sections 43 and 373 of the Code.
2. In our opinion Section 43 does not apply to proceedings in execution of a decree, and when a decree gives reliefs of a different character, such as a decree for possession and a decree for costs, we see nothing in the Code of Procedure which prevents separate and successive applications for execution as regards each of them. In some cases separate applications to different Courts would be necessary. If the judgment-debtor resided out of the jurisdiction and had no assets within it, the decree for costs would necessarily be executed in the district in which the assets were, although the decree for possession would be executed by the Court which passed the decree. In the absence of any provision in the Code directing that the application must be, when possible, to execute the entire decree, however various the reliefs granted may be, we must hold that the second application in the present case is not barred on the ground that the decree-holder did not in his first application apply to execute the whole decree. The order of the Court, striking the case off as disposed of, obviously had reference only to the particular application before it.
3. As regards the provisions of Section 373 of the Code in connection with which it was argued that, as the first application was struck off without any permission to make a fresh one for the unexecuted portion of the decree, a fresh application could not be entertained, our attention has been 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 the Allahabad High Court Radha Charan v. Man Singh I.L.R. 12 All 392 that Sections 373 and 374 did not apply to execution proceedings. We agree with the learned Judges who decided that case, and we think that the grounds for holding that Sections 373 and 374 do not apply, are applicable to Section 43 also. The appeal is dismissed with costs.
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Calcutta High Court
Radha Pershad Sing vs Radha Kishen Lall on 24 May, 1891
Equivalent citations: (1891) ILR 18 Cal 515
JUDGMENTMacpherson and Ameer Ali, JJ.
1. The decree-holder, the respondent in this appeal, had obtained a decree for possession of a plot of land, for the removal of a hut which stood thereon, and for costs. He first took out execution for costs, and on the amount being realized, the case was struck off on the 5th of June 1889 as disposed of. On the 17th March 1890, he applied to execute the decree for possession and for the removal of the hut, and was met by the objection that the decree could not be executed in parts; that the order of the 5th of June had disposed of the whole case, and that under the provisions of Section 43 of the Civil Procedure Code, read with Section 647, a further application for execution could not be entertained. The Munsif: and the District Judge on appeal overruled the objections, and it is now contended that they were wrong in doing so, having regard to the provisions of Sections 43 and 373 of the Code.
2. In our opinion Section 43 does not apply to proceedings in execution of a decree, and when a decree gives reliefs of a different character, such as a decree for possession and a decree for costs, we see nothing in the Code of Procedure which prevents separate and successive applications for execution as regards each of them. In some cases separate applications to different Courts would be necessary. If the judgment-debtor resided out of the jurisdiction and had no assets within it, the decree for costs would necessarily be executed in the district in which the assets were, although the decree for possession would be executed by the Court which passed the decree. In the absence of any provision in the Code directing that the application must be, when possible, to execute the entire decree, however various the reliefs granted may be, we must hold that the second application in the present case is not barred on the ground that the decree-holder did not in his first application apply to execute the whole decree. The order of the Court, striking the case off as disposed of, obviously had reference only to the particular application before it.
3. As regards the provisions of Section 373 of the Code in connection with which it was argued that, as the first application was struck off without any permission to make a fresh one for the unexecuted portion of the decree, a fresh application could not be entertained, our attention has been 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 the Allahabad High Court Radha Charan v. Man Singh I.L.R. 12 All 392 that Sections 373 and 374 did not apply to execution proceedings. We agree with the learned Judges who decided that case, and we think that the grounds for holding that Sections 373 and 374 do not apply, are applicable to Section 43 also. The appeal is dismissed with costs.
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