Straight, J.:— This is a second appeal from an order of the Judge of Benares, passed on the execution side, on the 8th September, 1889. The execution proceedings in which it was passed had reference to a decree, dated the 22nd May, 1878, and the application for execution with which it deals was dated the 14th February, 1884. The whole question involved in this appeal is whether that application of the 14th February, 1884 is prohibited by any rule of procedure or of limitation, which the lower Courts have held it is not.

The first application for execution of the decree was made upon the 14th February, 1881, and it is in reference to that application and to what took place upon it that the questions involved in the discussion that has taken place before us are concerned. It seems that after notice of that application of the 14th February, 1881 had been given to the judgment-debtor, he appeared and objected to the form of the application upon the ground that there had been a miscalculation in the application as to the amount covered by the decree in respect of which execution was sought. And it seems there can be no doubt that there was a miscalculation, because such was admitted to be the case by the pleader for the decree-holder. Accordingly, on the 24th December, 1883, the Application having been pending in the Court for that long period of time, an order was made by the Court, the terms of which it is not necessary for me to recapitulate at length, but they have been-explicitly translated for my benefit by my brother Mahmood, and they come to this, that the application was struck off at the request of the decree-holder's pleader, and that the copy of decree which had been filed with the application was returned to him. It is to be observed that in that order of the Court it is recited that the decree-holder's vakil stated in terms that for the present we are not anxious to carry on the execution proceedings, and was therefore apply that the case may be struck off.” That being so, I now come to the application with which we are more immediately concerned, viz., that of the 14th February, 1884. And I have to consider whether, having regard to what took place in respect of the application of the 14th February, 1881, we can adopt and act upon and we ought to adopt and act upon the provisions contained in ss. 373 and 374 of the Civil Procedure Code; because if those provisions are applicable to this case, then undoubtedly the Courts below were wrong in allowing the execution of the decree, and the decree cannot be executed. Now I do not hesitate to say, and in making the remark I am only recapitulating what I have hitherto always desired to lay down in these matters, that I am anxious, as far as I possibly can, to have introduced into the conduct of execution proceedings as much of the regularity and precision of procedure as is applicable to the trial of original suits as is reasonably possible and s. 647 of the Civil Procedure Code contemplates the adoption by the Courts, as far may be applicable, of the formalities of procedure. So that in the transaction of their miscellaneous business they may have certain well-understood landmarks—if I may so call them—to guide them in the conduct of that branch of their judicial work. Speaking generally, it seems to me that the assimilation of the provisions of ss. 373 and 374 to execution proceedings is highly desirable, and with the profoundest respect for the learned Chief Justice of Bombay, Sargent, C.J and for the view he expressed in Tara Chand Megraj v. Kashinath Trimbak , I fail myself to see how, by importing the provisions of those sections of the Code into execution proceedings, any violence will be done to the terms or the operation of art. 179 of the Limitation law. It seems to me that while on the one hand it is perfectly possible to have an application for execution made in accordance with law which will render the terms of art. 179 of the Limitation Act perfectly and properly applicable, so on the other it is equally possible to have such a condition of things as an application, for execution made and withdrawn under s. 373, in which state of things the limitation of art. 179 of the Limitation Act will not be applicable, because no application in accordance with law has been made, whereas the special limitation of s. 374 of the Civil Procedure Code will be applicable. Therefore, as I said before, I do not myself see that there will be any conflict between the sections of the Civil Procedure Code to which I have referred and art. 179 of the Limitation Act. Now, looking to the terms of the order of the Court passed in this matter upon the 24th December, 1883, it is obvious not only, that the pleader for the decree-holder knew that there were defects in his application, but further, he in explicit terms stated that he did not desire, for the present, to proceed with the execution and I confess that it would seem to me to be almost a contradiction in terms to say that an application dealt with as this was, was an application for execution in accordance with law, such as would save the course of ordinary limitation running. On the contrary, it seems to me that the state of facts, as they appear from the terms of that order, are such that we are fully warranted in applying s. 373 of the Civil Procedure Code, if it is applicable to what took place in respect of the application of the 14th February, 1881, and I myself have no doubt whatever, reading s. 647 of the Code in conjunction with ss. 373 an 374 of the Code, that those sections are applicable. Moreover, I am fortified in this view by the opinion expressed by my late brother Oldfield and approved by my brother Mahmood in the case of Kifayat Ali v. Ram Singh ) and I am prepared unhesitatingly to follow that ruling, and accept the principle therein laid down, that s. 373 of the Civil Procedure Code is applicable to execution proceedings, so far as may be. With regard to that case of my brothers Oldfield and Mahmood, I may further say that they therein adopted a ruling of the Bombay High Court, is Pirjade v. Pirjade , and it seems to me that the reasoning of Melville, J., as stated in his decision in that case, is of a character to commend itself to one's better judgment, and I approve the grounds on which he proceeded. While he seem to me conclusively to point out why there need be no conflict or hostility between the provisions of the Civil Procedure Code and the Limitation Act, the learned Chief Justice of the Bombay High Court, Sargent, C.J, although he seems to indicate that there may be some such conflict, does not point out what that conflict is.

Adopting the view of the two judgments I have mentioned, how does it meet the circumstances of this case, and what portion of s. 373 of the Code fits in to the particular circumstances of the case?

As regards the first paragraph of that section, it is clear that it has no applicability at all, because no leave or sanction was given by the Court to the withdrawal of the application of the 14th February, 1881, with leave to institute fresh proceedings upon the same basis. But paragraph 2 of s. 373 of the Code undoubtedly does apply to the circumstances, in my opinion. The application was withdrawn at the instance of the pleader for the decree-holder, and with the distinct intimation that “for the present we are not anxious to carry on the execution proceedings;” but no permission was given to withdraw with leave to take fresh proceedings. I am of opinion, and disposed to think, that the prohibition contained in the latter portion of that section's second paragraph has application; that it was not open to the decree-holder to make the application which he has now made.

But further than that, even if one can assume here for a moment that permission is to be inferred from the action of the Court in returning the petition for execution to decree-holder, s. 374 of the Code, with its specific and special limitation steps in, and the present application of the 14th February, 1884 would be barred, because it was not made within three years from the date of the decree, the application of the 14th February, 1881 having become a nullity by reason of the withdrawal of the petition.

So it must be looked upon that there was an unbroken interval of time from the date of the decree, 22nd May, 1878, till the 14th February, 1884, when the application, now the subject-matter of appeal, was presented before the Subordinate Judge. That being so, it seems to me that this present application is undoubtedly barred, and that the decree-holder is not entitled to pray in aid the proceedings which commenced in 1881 and terminated in 1883. What I mean to say is this, that all that took place with regard to the proceedings commencing on the 14th February, 1884, and ending on the 24th December, 1883 must be struck out and they cannot be regarded as constituting an application an which the decree-holder can rely. This being the view that I take of the matter, it seems to me that this appeal ought to be decreed, and I, therefore, decree the appeal and, reversing the orders of the Courts below, hold that the application of the decree-holder for execution should be dismissed, and the judgment-debtors are entitled to have their costs in all the proceedings.

Mahmood, J.:— I am of the same opinion, and as my learned brother has already stated the various aspects of the questions of law which induced me to refrain from deciding the case myself, sitting as a single Judge, and to refer it to a Division Bench consisting of two Judges, I need not say much. I have only to say that it seems to me that, upon general principles, all rules of procedure or adjective law which provide pleas in bar to the action are rules of convenience which should be applicable as much to all miscellaneous proceedings (be they in the nature of applications for execution or any other class of applications) as they are applicable to regular suits. To take as an example the plea of res judicata: it is based upon the maxim “Nemo debet his vexari pro una et eadem cansa,” which is a maxim of wider application and has application to regular as well as miscellaneous proceedings. For why should a judgment-debtor be harassed twice, unless there is a reason admitting of explanation that the second application is not in fact a harassing twice? Such as the decree not being paid oft at all or only partially satisfied, in which case the doctrine of res judicata will not apply, for reasons into which I need not enter in detail for the purposes of this case. But where no such explanation is given the doctrine will apply; as in the two cases to which I alluded in my order of reference it, has been laid down that res judicata is applicable to orders made in execution proceedings. But this is no longer an open question for the Courts in India, after for expression of opinion of their Lordships of the Privy Council that the law of res judicata is applicable to execution proceedings. I have said so much about the rule of res judicata because, so far as I can see, the operation of other pleas in bar of an application or a suit, such as ss. 373 and 374 of the Civil Procedure Code contemplate, and upon which sections my brother has already fully dwelt, fall under the same category as the plea of res judicata, because they are all pleas in limine barring the action. My learned brother has already said that the operation of those two sections is almost imperatively required, not only by the express terms of s. 647 of the Civil Procedure Code, but also by the general principles of convenience and regularity of proceedings. There is, of course, a conflict of decisions, to which my referring order alludes, and in simply comes to this, that the learned Judges who decided the case of Pirjade v. Pirjade , and which, was followed by Mr. Justice Oldfield and myself in the case of Kijayat Ali v. Ram Singh , took one view of the matter—a view approved by my learned brother Straight—and the Madras case of Ramanandan Chetti v. Periatambi and the present Chief Justice of Bombay took the opposite view. It was, indeed, out of respect due to the learned Chief Justice of Bombay, and also to the view taken by the Madras Court, that I did not undertake the responsibility of deciding the case myself, I have however, no longer any doubts left now. It is a true doctrine, regulating the principle upon which the rules of procedure should proceed, that those rules aim at facilitating the administration of justice by promoting the convenience of the parties by preventing recurrence a ad-repetition of points already adjudicated upon, there is no reason why all the principles contained in Chapter XXII of the Civil Procedure Code should not be applied to-execution proceedings. In deed, as one who has acted as a Court of first instance in the mufasal for some time, I have applied the provisions contained in that chapter to proceedings in execution. And if that chapter were not applicable to such proceedings, there would scarcely be any provisions to enable the parties to a decree to enter into any compromise. I have added these few remarks simply because the case has taken up the time of two Judges instead of one. I entirely concur in the order of my learned brother Straight.

Appeal allowed.