This appeal is directed against an order of Mr. B. Goswami, Subordinate Judge, Upper Assam Districts, Jorhat, dated 10-3-58, in Misc. Appeal No. 14 of 1957. By the order in question, the learned Subordinate Judge allowed the appeal of the judgment-debtor holding that the execution case was time-barred and reversing the decision given by the learned Munsiff in favour of the decree-holder. The order, in my opinion, is misconceived and has to be set aside. (2) The decree to which the execution case relates was passed in Title Suit No. 47 of 1952 in favour of the decree-holder appellant, giving various reliefs to the decree-holder, namely, for ejectment, for Khas possession and for compensation. The date of the decree is 15-11-52. Execution was started on the basis of the decree in Execution: Case No. 73 of 1953, which .was filed on 25-11-53, obviously well within three years of the date of the decree. It appears that the judgment-debtor appeared in the execution case and filed objections under Sec. 47, C. P. Code, but his objections were overruled, and he failed even on appeal. Ultimately, however, the execution case was dismissed for default on 31-8-56. Almost immediately thereafter the decree-holder levied a fresh execution of the decree on 8-9-56, this being Execution Case No. 56 of 1956. This execution case was also disposed of on 30-11-56, and the present execution case, being Execution Case No. 14 of 1957, was levied on 4-3-57. It is quite clear from the dates which I have given above that all these execution cases were levied within time. Indeed it is not disputed by the learned counsel for the respondent that Execution Case No. 73 of 1953 was properly instituted, hut the allegation is that certain steps were taken in the said execution case by a lawyer who had really no authority to take those steps. For instance, on behalf of the decree-holder, a petition was filed in that execution case on 13-7-54 and again another on 5-1-56 by one Sri P. Pathak, a pleader who had no authority to do so. The learned Munsiff was of the view that a vakalatnama must have been filed by the pleader before taking any action in the case, but it was probably misplaced, and he accordingly directed a fresh vakalatnama to be filed by the pleader concerned.
The learned Munsiff was of the view that a vakalatnama must have been filed by the pleader before taking any action in the case, but it was probably misplaced, and he accordingly directed a fresh vakalatnama to be filed by the pleader concerned. The learned Subordinate Judge has not accepted this part of the finding of the learned Munsiff. He opines that actually there was no vakalatnama on the record; and that being so the whole execution case was, according to him, illegal and void and could not operate to save limitation. The learned Subordinate Judge was clearly in error in making any such assumption. It is not disputed that the execution case itself was filed by a lawyer having authority to do so. As such, it was an application for execution presented in accordance with law to the proper Court, and under clause (5) of Article 182 of the Limitation Act, limitation would run from the date of the final order in the case. The date of the final order admittedly was 31-8-56, dismissing the execution case. Therefore, there could be no limitation so far as the present execution goes; but even assuming for the sake of argument that some steps were taken in the first execution proceeding by a lawyer who had no authority to represent the decree-holder, that would be a mere irregularity which would not affect the validity of the execution proceeding itself. Besides, it appears that the objection is no longer open to the judgment-debtor respondent. He had already filed objection under Sec. 47 of the Code of Civil Procedure in that execution case, and failed both before the executing Court as well as on appeal. If there was any irregularity in the execution proceeding on the ground now set up by the judgment-debtor, it was his duty to raise this objection in the execution case. That not having! been done, the objection is no longer open to the judgment-debtor, and the principle of constructive res judicata would apply in such a case even to execution proceedings. As I said, in any case the filing of petitions in the execution case by a lawyer,1 having no authority on behalf of the decree-holder, was a mere irregularity: vide, for instance, "M, Narappa v. P. Subbarayadu" AIR 1951 Mad 340 and "Kanhaya Lal v. Panchayati Akhara" AIR 1949 All. 367.
As I said, in any case the filing of petitions in the execution case by a lawyer,1 having no authority on behalf of the decree-holder, was a mere irregularity: vide, for instance, "M, Narappa v. P. Subbarayadu" AIR 1951 Mad 340 and "Kanhaya Lal v. Panchayati Akhara" AIR 1949 All. 367. I must, therefore, hold that the first execution case which was filed within time and disposed of on 31-8-56 by a final order, was in accordance with law, and that it operated to save limitation in the present case. (3) The other ground taken by the learned Subordinate Judge for dismissing the execution case is equally erroneous. The learned Subordinate Judge observes that where a party willingly leaves a part of a decree unexecuted, he should be held to have waived his right to execute that part; and because in the first execution case, the decree-holder did not claim to realise the money decreed, the claim for recovery of the money for which he sought to execute the decree in the second execution case No. 56 of 1956 must, therefore, be held to be barred. This observation of the learned Subordinate Judge proceeds on the illegal assumption that if the decree-holder does not levy execution of a decree in respect of all the reliefs granted thereunder, his omission to do so in respect of some of the reliefs granted, bars his right to any subsequent execution in respect of those reliefs. There is no warrant in law for any such assumption. It is open to the decree-holder to execute the decree for any of the reliefs granted and if the execution case is otherwise legal and valid, it would serve to keep the decree alive for purposes of subsequent executions provided such executions are levied within the time prescribed by law. The Munsiff, in my opinion, was right in pointing out that where a decree grants different reliefs, for example, for possession of land and for money as rent and compensation and for costs, as it was done in this particular case, the decree could be executed by means of separate and successive applications in respect of each relief, and Or. 2, R. 2, C. P. Code does not apply to execution proceedings. In the Code of Civil Procedure, there is no bar to separate and successive applications for execution when a decree grants different reliefs.
2, R. 2, C. P. Code does not apply to execution proceedings. In the Code of Civil Procedure, there is no bar to separate and successive applications for execution when a decree grants different reliefs. Therefore, an application for execution of the decree in respect of even one of the reliefs, would be quite sufficient to save limitation as to the en-, tire decree. It may be regarded as a step-in-aid with regard to the whole decree, and where a decree is indivisible, execution of any part of it would keep alive the whole decree. Reference may be made in this context to the decision in "Maduri Lakshminarasimham v. Maduri Suryanarayana" AIR 1948 Mad. 246. In that case, a partition decree was passed for delivery of certain property, for payment of mesne profits up to the date of the suit, and for mesne profits pendente lite and for costs. The petition for execution of the decree as to past mesne pro-6ts and costs was struck off on 6-7-44 on part satisfaction. On 24-4-1944, the decree-holder applied in execution for recovery of the amount of subsequent mesne profits. An objection was raised that it was time-barred since that part of the decree awarding future mesne profits should be treated as a separate decree. This objection was overruled and it was held by a Bench of that Court that there was only one decree within the meaning of Article 182, notwithstanding that it included several reliefs based upon distinct causes of action, and that it was open to the decree-holder to rely upon cl. (5) and ask for limitation to be calculated from the dates of the final orders in previous execution petitions, not-» withstanding that those petitions sought execution of reliefs other than that sought in the subsequent one. The principles stated above apply with equal force to the circumstances of this case. (4) I, therefore, allow this appeal, set aside the order of the learned Subordinate Judge and restore that of the learned Munsiff, and direct that the Execution Case in question should proceed according to law. The decree-holder is entitled to her costs throughout. Appeal allowed.