[85] Sir John Edge, C.J:— This is an appeal from an order of the Subordinate Judge of Cawnpore disallowing an application for the execution of a decree. The decree in question was passed on the 14th of January 1887, and was, so far as is material, one for an ascertained amount of money and for mesne profits to be ascertained. On the 21st of February 1888 the decree-holder applied to have the decree executed by attachment and sale of property which had been of the judgment-debtors in their lifetime. No inventory of the property sought to be attached was annexed to the application, nor did the application contain any description of the property sufficient to identify it.

On the 25th of February 1888 the Subordinate Judge ordered a notice, under section 248 of the Code of Civil Procedure, to issue to the legal representatives of the deceased judgment-debtors, and on the same day a notice under that section was, in accordance with the order of the Subordinate Judge, issued, fixing the 24th of March 1888 as the day on which the legal representatives of the deceased judgment-debtors should show cause why the decree should not be executed against them. That notice was served on the 11th of March 1888.

On the 24th of March 1888 the pleader for the decree-holder asked the Court for a week's time to enable him to file a list of the property sought to be attached. The Court on the 24th of March 1888 allowed time for filing the list until the 3rd of April 1888, and fixed the 3rd of April 1888, for proceeding with the hearing of the application for execution.

On the 3rd of April 1888 no list of the property sought to be attached having been filed, the Subordinate Judge passed an order that the application for execution ‘be struck off the file of pending cases.”

On the 11th of February 1891, the decree-holder presented to the Court of the Subordinate Judge the application for execution, the dismissal of which is the subject of this appeal.

The particulars which were inserted in the column of the application relating to the mode in which the assistance of the Court was required, were as follows:—

[86] “Rupees 20,019-11-1½ are due to the decree-holder on account of the decree-money, costs, mesne profits and interest, out of that Rs. 15,000 have been realized. The necessary inquiry relating to the amount of mesne profits may be made, and the amount which may be found correct may be awarded by the attachment and sale of the judgment-debtors' property. Pabalwan Singh and Khaman Singh, judgment-debtors, are dead. The execution proceedings may be taken against the heirs of the said judgment-debtors. The inventory of the property will be filed hereafter.”

It will be noticed that no inventory or description of the property sought to be attached was given, and yet if the case were one, as apparently it was, in which some at least of the property sought to be attached was moveable property which had been of the judgment-debtors in their life-times. 236 of the Code of Civil Procedure applied and required that such an inventory should be annexed to the application for execution; and if some of the property sought to be attached was immoveable property, s. 237 applied and required that the application should “contain a description of the property sufficient to identify it, and also a specification of the judgment-debtor's share or interest therein to the best of the belief of the applicant and so far as be has been able to ascertain the same.” If those sections or either of them applied, neither the application of the 21st of February 1888 nor that of the 11th of February 1891 was in accordance with law. Possibly also s. 238 may have applied to the application. The Acts and Codes of the Legislature have been passed to be observed and not to be treated as dead letters. It is almost inconceivable that the negligence of the decree-holder or his pleader which led to the application of the 21st of February 1888 being struck off the file of pending cases should have been repeated when the application of the 11th of February 1891 was made. My experience of the neglect of parties or their pleaders to observe the procedure provided by the Legislature would induce the belief that they considered that such procedure might be treated with contempt, and that they were entitled to conduct their litigation in Civil Courts in the dilatory, negligent [87] and slipshod fashion most suited to their inclinations and their idleness. In my opinion, when such negligence results in an application being dismissed or a hearing adjourned, the opposite party should be allowed his costs if any have been incurred by him.

On the 2nd of March 1891 a notice under s. 248 of the Code of Civil Procedure fixing the 11th of April, 1891, for the persons against whom execution was applied for to show cause was issued in pursuance of an order of the Court of that date.

There is on the record a judgment, dated the 9th of June 1891, signed by the Subordinate Judge. That judgment is, so far as is material, as follows: “On inspection of the record of execution case it is clear that the decree-holder obtained one week's time for filing an inventory on 24th March 1888, but he did not do so, and the case could not proceed further and was struck off on the 3rd April 1888. Therefore under the ruling of Radha Charan, this application is barred by s. 158, Act XIV of 1882. A fresh application cannot be made. This application is therefore disallowed.

The order under appeal is signed by the Subordinate Judge, and is dated the 22nd of July, 1891. So far as that order is material it is as follows:—

“Application for determining the amount of mesne profits valued at Rs. 5,019-3-1½

“Upon the hearing of this case on the 20th day of June 1891, by Sayyid Akbar Hussain Khan, Subordinate Judge, the presiding Judge of this Court, in the presence of Lala Gursahai Lal, the pleader for the petitioner, and Lala Dargahi Lal, Rai Bahadur, and Munshi Sham Lal, the pleaders for the opposite parties—

It is ordered that the application be disallowed.”

The order should have been dated as of the date when the judgment was pronounced. The date of the order does not correspond with the date mentioned in the body of it, nor does either of those dates correspond with the date at the foot of the judgment. What may be the explanation of this discrepancy in dates I am not aware. [88] It is from the last mentioned order of the Subordinate Judge that this appeal has been brought.

It is obvious from the judgment of the Subordinate Judge, dated the 9th of June, 1891, that he was of opinion that the order of the 3rd of April 1888 was an order dismissing the application for execution of the 21st of February 1888, and was an order deciding that application, and that it was passed by the Court under circumstances which entitled the Court on the 3rd of April 1888 to proceed by analogy under s. 158 of the Code of Civil Procedure to decide forthwith the application of the 21st of February 1888 for execution of the decree and the right of the decree-holder to have his decree executed.

The only ground stated in the memorandum of appeal is entirely inapplicable to the facts. It was based on the mistaken assumption that the Subordinate Judge passed the order now under appeal on the view that the application of the 21st February 1888 had been withdrawn under s. 373 of the Code of Civil Procedure. There had been in fact no withdrawal of the application of the 21st of February 1888.

On behalf of the appellant it has been contended by Pandit Sundar Lal that Chapter XIII of the Code of Civil Procedure, which contains s. 158, does not apply to applications or proceedings for the execution of decrees, and that no procedure is provided by the Legislature under which the order of the 3rd of April 1888 could have been passed. On behalf of the respondents, who are the legal representatives of the deceased judgment-debtors, it has been contended by Munshi Ram Prasad that the application of the 11th of February 1891 was barred by limitation as it was made more than three years after the date of the decree; that the application of the 21st of February 1888 was not an application “in accordance with law” within the meaning of Art. 179 of the second Schedule of the Indian Limitation Act, 1877, as not having been in compliance with s. 236 or s. 237 of the Code of Civil Procedure; and that the issuing of the order under s. 248 of the Code of Civil Procedure on the 25th of February 1888, was on an application which [89] was not in accordance with law, and consequently was not such an order as was contemplated by Art. 179. We can dispose of this contention at once. That order, whether or not it ought to have been made or issued, was in fact an order under s. 248 of the Code of Civil Procedure, and kept the decree alive for the purposes of execution. Munshi Ram Prasad also contended that Chapter XIII of the Code of Civil Procedure does apply to applications or proceedings for the execution of decrees, and that the order of the 3rd of April 1888 was an order dismissing the application of the 21st of February 1888, and determining finally the right of the decree-holder to have his decree executed, and that the Court on the 3rd of April 1888 had proceeded under s. 158 of the Code to decide forthwith the application of the 21st of February 1888. Munshi Ram Prasad contended from a passage in the judgment of their Lordships of the Privy Council in the case of Maharajah Dheeraj Mahtab Chund, Bahadoor v. Bulram Singh(1) that the order of the 3rd April 1888 was capable of being considered as a final order determining the decree-holder's right to get his decree executed. Munshi Ram Prasad further contended that having regard to the order of the 3rd of April 1888 the decree-holder could not now maintain an application for the execution of his decree, and that the order of the 3rd of April 1888 was of as much effect in determining the decree-holder's right to get his decree executed as was the order of Mr. Probyn in the execution proceedings in the case of Ram Kirpal Shukul v. Mussamat Rup Kuari(2), in determining what was the construction of the decree in that case, as to which their Lordships of the Privy Council an reported to have said at page 41 of L.R 11 I.A, that the matter decided by Mr. Probyn was not decided in a former suit, but in a proceeding of which the application in which the orders reversed by the High Court were made was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the [90] judgment into execution. The binding force of such a judgment depends not upon s. 13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation. The judgment or order of Mr. Probyn was an interlocutory judgment; he merely held that according to the proper construction of the decree of the Sadder Court, mesne profits were awarded by it.”

Munshi Ram Prasad also relied upon a judgment of this Court in the case of Pheku v. Pirthi Pal Singh(3).

That it is absolutely necessary in the interests of the public, any one of whom may be a party at sometime or other to proceeding's in execution of a decree, that a Civil Court should have some power by which to compel parties to put the Court in a position to proceed to a determination of applications and proceedings in execution of decrees by producing their evidence, causing the attendance of their witnesses, when evidence is necessary, or by performing any other act necessary to the further progress of the proceeding in execution, and, in case of default, to finally decide the application and the proceedings in accordance with the materials upon the record cannot, I imagine, be questioned. It is not consistent with sound principles of jurisprudence or with the interests of the public that a decree-holder should be entitled to harass his judgment-debtor and to encumber the files of a Court with applications for the execution of his decree which he takes no steps to proceed with, and which he never intended to proceed with, and which in many cases are made with the sole object of preventing the execution of the decree becoming barred by limitation, or of saddling the judgment-debtor with additional costs and harassing him. It has come to my notice that cases have occurred where a decree-holder or his pleader for his own purposes or to suit his own convenience has withdrawn an application for the execution of a decree, and the judgment-debtor was left by the order of the Court to bear his own costs incurred in the application. It has also come to my notice that, when an application for the execution of a decree has been struck off the file of pending cases in consequence of the decree-holder failing to proceed with his application [91] or failing to take some step necessary for the further progress of the application or proceeding in execution, the judgment-debtor, who was in no way responsible for the laches of the decree-holder, has had to pay the decree-holder's costs of the application. I may say that in such cases as those to which I have referred the Court should, in my opinion, have awarded the judgment-debtor his costs to be paid by the decree-holder. The fact remains that such cases do occur, and I attribute their occurrence mainly to the uncertainty in which Courts are left as to the procedure to be followed. It has also, I regret to say, come to my notice that some Subordinate Judges and Munsifs, in abuse of their powers and in order to make their returns show a small file of pending cases and a large disposal of applications for the execution of decrees, have not, hesitated to strike off their files of pending cases applications for the execution of decrees which had not been decided or judicially disposed of.

All such cases as those to which I have been alluding afford examples of the danger of allowing Courts to invent a procedure for themselves, or leaving them in uncertainty as to the procedure to be followed.

It appears to me that in this case we have to ascertain if possible whether the Court, when making its order of the 3rd of April 1888, was acting under what, having regard to Act No. VI of 1892, we can consider as a procedure authorised by the Legislature; or if not, under what procedure it acted; and further we must ascertain what, was the effect, if any, of the order of the 3rd of April 1888 on the rights of the decree-holder and of the legal representatives of the judgment-debtors, respectively.

An application for the execution of a decree is an application in the suit in which the decree was obtained. That was decided by their Lordships of the Privy Council in the case of Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry. Similarly an appeal from a decree obtained in a suit is an appeal in the suit. In that sense the word “suit” is used generically as including all the stages of the litigation, from the presentation of a plaint to the final execution [92] of the ultimate decree. The word “suit” has sometimes; as for example in some of the section's of the Code of Civil Procedure, been used in a more restricted sense. For instance, in s. 647 of the Code of Civil Procedure, as it stood before Act No. VI of 1892 was passed, the word “suits” was used not as inclusive of an appeal but in contradistinction to an appeal and to express a stage of litigation prior to an appeal; or at any rate as distinguished from the stage of litigation included in the term “appeals.” Again, for example, in Chapter XIII of the Code of Civil Procedure the word suit is used to express and refer to a stage of litigation prior to an appeal from a decree in the suit. No lawyer would understand the words “adjourn the hearing of the suit,” which are in s. 156 of the Code of Civil Procedure, as referring to the hearing of an appeal from a decree in the suit. That the Legislature did not understand that the procedure provided by, for instance, Chapter XIII for suits applied of itself, or by reason of any section contained in the chapters of the Code expressly relating to procedure in suits to appeals from decrees in suits is obvious from a consideration of Chapter XL of the Code, and particularly from s. 582. Chapter XXIII, and s. 583 of the Code of Civil Procedure, contain examples of the use of the words “suit” and “suits” in the restricted sense.

This Court, reading the word “suits” in s. 647 of the Code of Civil Procedure in its restricted sense, as it appears to have been there used, had held that s. 647 made the procedure prescribed by the Code for suits applicable, so far as it could be made applicable, to proceedings in execution of a decree, and treated s. 647 as having an effect, in proceedings in execution of decrees, analogous to the effect of s. 582 in appeals from original decrees, and to the effect of s. 587 in appeals from appellate decrees. As far back as the 14th of February 1884 McDonell and Field, JJ., in Biswa Sonan Chunder Gossyamy v. Binanda Chunder Dibingar Adhikar Gossyamy held that s. 647 of the Code of Civil Procedure made s. 108 applicable to proceedings in the execution of decrees. Referring to s. 108, they said: “This section applies to regular suits, but under the [93] provisions of s. 647 it is equally applicable to all proceedings other than suits and appeals.” If that view of the law was correct, and if Act No. VI of 1892 had not passed, Chapter XIII could, by reason of s. 647, be applied to applications and proceedings for the execution of decrees.

By reason of s. 4 of Act No. VI of 1892, s. 647 of the Code of Civil Procedure can no longer be held to make applicable to proceedings for the execution of decrees the procedure provided for suits at the hearing stage; as s. 4 of Act No. VI of 1892 enacts: “To s. 647 of the said Code the following explanation shall be added, namely:—

“Explanation.—This section does not apply to applications for the execution of decrees, which are proceedings in suits.”

It is not material to inquire whether in s. 4 of Act No. VI of 1892 the word “suits” is used in the restricted sense in which it is used in the first paragraph of s. 647 and other sections of the Code of Civil Procedure, or in its wider and generic sense. Whichever be the sense the effect of s. 4 of Act No. VI of 1892 is the same. It has, by making s. 647 of the Code of Civil Procedure inapplicable in proceedings for the execution of decrees, deprived the Civil Courts of the power to apply by analogy to proceedings for the execution of decrees the procedure specifically prescribed for proceedings in suits at a stage prior to decree, and has limited the procedure which can be applied under the Code of Civil Procedure in proceedings for the execution of decrees to the procedure which is expressly, as in Chapter XIX of the Code, or by implication, prescribed for proceeding's for the execution of decrees or for proceedings at the execution of decree stage of a suit.

The procedure prescribed in Chapter XIII of the Code is not expressly or hy implication prescribed for applications or proceedings for the execution of decrees, although such applications are declared by the explanation to s. 647 (Act No. VI of 1892, s. 4) to be proceedings in suits. The procedure prescribed by Chapter XIII is prescribed for that stage of a suit when the suit is still at hearing and before the passing of the decree. Section 156 enables a Court, [94] in the event therein mentioned, from time to time to “adjourn the hearing of the suit and to fix a day for the further hearing of the suit.” Section 157 enables the Court to proceed to dispose of the suit in one of the modes directed in that behalf by Chapter VII, or to make such other order as it thinks fit if on “any day to which the hearing of the suit is adjourned the parties or any of them fail to appear.” Section 158 enables the Court “to proceed to decide the suit forthwith” in case of a default of any party to the suit to whom time has been granted “to produce his evidence or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed.” There is nothing in Chapter XIII to suggest that the procedure therein contained or any of it is to be applied or can be applied except whilst the suit is still at hearing, or that it is to be applied or may be applied after the hearing of the suit, within the meaning of Chapter XIII, has determined by the making of the decree.

The application of s. 647 of the Code of Civil Procedure having been prohibited to applications for the execution of decrees, there is nothing in the Code of Civil Procedure, as amended by s. 4 of Act No. VI of 1892, which authorises a Court to apply at the stage of the execution of a decree any of the procedure enacted in Chapter VII of the Code.

Chapter XIX of the Code of Civil Procedure, obviously to any one who has read that chapter and is conversant with proceedings for the execution of decrees, does not contain anything like a complete procedure for the proceedings for the execution of decrees, and with the exception of s. 250, does not suggest what procedure should be adopted in cases analogous to those which may occur during the hearing of a suit and which are provided for by Chapter XIII. In cases to which s. 250 applies a Court might no doubt suspend the issue of its warrant for the execution of the decree, but that course if adopted would not dispose of the application for execution, which would still remain undisposed of on the register of pending cases. In my opinion, there are only two ways in which an application to a Court can be judicially disposed of by the Court, and they are by an [95] order granting in whole or in part the prayer of the applicant, and by an order dismissing in whole or in part the prayer of the applicant; of course the order might be partly one or partly the other.

Although I am most reluctant to decide questions of procedure on the basis of Courts having inherent power to invent procedure for themselves, yet when I find that the Legislature has provided no procedure to be followed in cases which must and do arise, I am compelled to hold in such cases that such inherent power does exist in the Courts, for otherwise the work of Courts could not be disposed of, and the Courts would have no power to bring litigation in such cases to a close.

In my opinion it is as necessary that Courts should, in proceedings for the execution of a decree, have power to dispose of applications for the execution of decrees when on the day fixed for the hearing, or on the day to which that hearing has been adjourned, the parties or any of them fail to appear, or when a party to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the application for which time has been allowed, as it is that Courts should have in suits at the hearing stage the powers conferred upon them by Chapter VII and Chapter XIII of the Code of Civil Procedure. A Court must have power inherent, if not conferred by statute, to dismiss an application when the applicant fails through his own laches to put the Court in a position to proceed with his application, as for instance by failing to pay the Court fees for service of a notice under s. 248 on the judgment-debtor. Similarly, I consider that a Court must have inherent power, if such power is not conferred upon it by statute, to proceed forthwith to decide an application for the execution of a decree on the materials before it, when time has been granted to a party to perform any act necessary for the further-progress of the application and that act has not been done. In such cases, had it not been for s. 4 of Act No. VI of 1892, the procedure provided in Chapters VII and XIII of the Code of Civil Procedure could be applied by analogy [96] under s. 617 of the Code in proceedings upon applications for the execution of decrees.

Although. I think that under the circumstances to which I have referred a Court in a proceeding upon an application for the execution of a decree must be held to have inherent power to dismiss the application or otherwise to decide it. I strongly doubt that a Court can have any inherent power to set aside its own order, except possibly on a review of judgment. I am of opinion that a Court has no inherent power after it has passed an order of dismissal on the merits to entertain a fresh application between the same parties, in the same rights, seeking the same or a similar remedy, and dealing with the same subject-matter.

In the present case the order of the 3rd of April, 1888, was, that the application be “struck off the file of pending cases.” It has been contended that an order “striking off” an application for the execution of a decree cannot in any case be considered as an order dismissing the application. In my opinion that contention goes too far.

With reference to Act No. X of 1877, White, J., in Baroda Sundari Dabia v. Forgmson, ruled that “striking off is not in accordance with any provision in the Code of Civil Procedure,” and McDonell and Field, JJ., in Biswa Sonan Chundar Gossyamy v. Binanda Chunder Dibiugar Adhikar Gossyamy held that “there is no provision in the Code of Civil Procedure for striking off a case.” No provision has been introduced into Act No. XIV of 1882 enabling a Court to strike off a suit, appeal or application.

In the case of Ram Kirpal Shukul v. Mussamat Rup Kuari, their Lordships of the Privy Council, referring to certain orders subsequent to the order of Mr. Probyn of the 20th of December, 1867 and prior to the application for execution out of which the appeal to Her Majesty in Council arose, are reported at page 4:2 of the report to have said: “In the course of these proceedings the case was, for various reasons, several times “struck off” that is to [97] say, struck off the file of the business pending in the Court of the Subordinate Judge: but the application for execution, upon which Mr. Probyn's judgment was pronounced, was not dismissed or finally disposed of. Mr. Probyn's judgment and the order-passed thereon was not reversed or set aside. It was said that a special appeal from that judgment did not lie to the High Court. If so, the judgment was final; if an appeal did lie and none was preferred the judgment was equally final and binding upon the parties and those claiming under them.” I do not know what were the reasons for those orders striking off the execution case, but I think it may be assumed that none of those orders striking off the case were made on a judgment finally deciding that the applicant for execution was not entitled to get the decree executed. In the case of Syam Singh v. Baidyanath Rai(4), in which the execution case was, in accordance with a petition presented to the Court, struck off the file, the attachment being maintained, Prinsep and O'Kinealy, JJ., held: “This striking off could not possibly affect the proceedings between the parties relating to the continuance of the attachment, and it can at most be regarded as an order passed for the purposes of administrative business.” In that case the petition embodied an agreement for postponement of the proceedings in execution which had been made by the applicants for the execution of the decree, and the judgment-debtors other than Kartick Singh, who subsequently objected that execution of the decree was barred.

In the case of Rajah Muhesh Narain Sing v. Kishanund Misr and Ruglwbnr Dyal Sing their Lordships of the Privy Council are reported at page 341 of the report to have said: “It would be contrary to general principles, and a senseless addition to all the vexations of delay in the course of procedure, to hold that, when, for 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 the further proceedings for the same purpose are to be considered as taken in a new suit.”

[98] In the case of The Delhi and London Bank, Limited v. Melmoth A.D Orchard, their Lordships of the Privy Council held that an order of the 10th December 1869, that the petition for the execution of a decree should “be sent to the record-room” on the ground that it was not within the power of the Court to execute the decree was not an adjudication which barred a subsequent application for the execution of the decree.

Their Lordships did not give their reasons for holding that the order of the 10th of December 1869 was not an adjudication which would bar a subsequent application for execution. It is to be observed that they did not suggest that if the order had concluded by expressly dismissing the petition instead of by ordering it “to be sent to the record-room” the result would have been different, and I conclude that in holding that the order was not an adjudication which would bar a subsequent application for the execution of the decree, their Lordships were considering the reasons stated in the order for directing the petition “to be sent to the record-room,” and that if those reasons had shown an adjudication on the merits they would have held that the order had barred the subsequent application notwithstanding the informal conclusion directing the petition “to be sent to the record-room” having been used instead of a formal conclusion in legal language dismissing it.

The decision of their Lordships of the Privy Council in The Delhi and London Bank, Limited v. Orchard was considered by White and Field, JJ., in Hurrosoondary Dassee v. Jugobundhoo Dutt, and in reference to it they said at page 205 of the report: “The precise ground upon which their Lordships' decision proceeded is not stated. Possibly it may have been that the refusal of the application was not to be considered as an adjudication on the point.” It is obvious that White and Field, JJ., were of opinion that the order directing the petition to be sent to the record-room” was to be considered as an order refusing the application. That decision of their Lordships of the Privy Council was also considered by Sir M. Westropp. C.J, and Melvill, J., in [99] Manjunath Badrabhat v. Venkatesh Govind Shanbhog, and after quoting the exact words of the order of the 10th of December 1869, the effect of which had been considered by their Lordships of the Privy Council, those learned Judges, at page 60 of the report, said: “It appears to us that the above order was not in the nature of an adjudication at all, and that the description of it in the head-note to the report in the Indian Appeals, and still more the description in the head-note to the Calcutta Report, is incorrect and gives an erroneous idea of the meaning of the Judicial Committee's observations. The Deputy Commissioner did not, in fact, decide that the application was time-barred, nor did be decide any thing. He simply said that, as he could not execute the decree without the Commissioner's sanction, and as the Commissioner had not given, the sanction which had been applied for, nor made any other order, it was not within his power to execute the decree, and therefore the application must go to the record-room. The Judicial Committee might well say that this was not an adjudication within the rule of res judicata or within s. 2 of Act VIII of 1859. We do not think that the question, whether a decision that an application is time-barred is res judicata, is in any way concluded by the observation of the Privy Council in The Delhi and London Bank v. Orchard, but we think that it is concluded by necessary inference from, the judgment of the same tribunal in Mungul Parshad Dichit v. Grija Kant Lahiri Chowdhry.” It will be noticed that Sir M. Westropp, C.J, and Melvill, J., in giving that explanation of the decision of their Lordships of the Privy Council, sought for the explanation in the reasons given by the Deputy Commissioner for ordering the petition to “be sent to the record-room,” and did not lay any stress upon the words used having been “be sent to the record-room” instead of the words “be dismissed.” I think the explanation given by Sir M. Westropp and Melvill, J., of the views which may have influenced their Lordships of the Privy Council is probably correct, and if it be, it follows that in considering the effect of an order passed [100] by a Court in a proceeding for the execution of a decree we must be guided by the reason stated for making the order and not by the mere phraseology employed in the formal direction which concludes the order. In other words, that we must in such cases ascertain whether an order that an application “be dismissed,” “be struck off,” be shelved” or ‘be sent, to the record-room” was based on a judicial adjudication that the applicant's right to have his decree executed at all was gone by reason of limitation or some other ground, which, if it existed, would disentitle him to have execution of the decree on any application which he might make, or was made on some ground which did not go to the merits and to his right to execute his decree, as for instance, his application not having been made in compliance with s. 235 or s. 236 or s. 237 of the Code of Civil Procedure, or his having failed to deposit talbana, or to procure the attendance of his witnesses, or to perform any other act necessary to the further progress of the application. Even in the three latter cases there might possibly be in my opinion an adjudication on the merits on the materials before the Court which might finally decide the rights of the parties so far as any question relating to the execution of the decree was concerned.

When such an order in proceedings for the execution of a decree is based on an adjudication, whether erroneous or not, on the merits, whether the phraseology employed is “be dismissed,” “be struck off” or “be shelved” it is, in my opinion, until it is reversed or set aside, a bar to any subsequent application for the same purpose, but when it is not based on an adjudication on the merits, it is not to be considered as a bar.

Although there is no provision in the Code of Civil Procedure authorizing the form of the order of the 3rd of April 1888, i.e, an order that a case be struck off the file of pending cases, and although I am strongly of opinion that Courts should not use ambiguous and unauthorized words in their judicial orders, we must ascertain what the intention of the Court was when it made the order of the 3rd of April 1888. Having regard to the position in which Courts are left by not being able to apply the procedure of, for [101] example, s. 99 or s. 108 of the Code of Civil Procedure, to cases arising under applications for the execution of decrees, and further having regard to the results which may follow in some cases from the erroneous procedure of passing orders striking execution cases off the files of pending cases followed in some Courts in these Provinces, and apparently in Courts elsewhere, I feel bound to hold as I now do that in the case of orders striking execution cases off the files of pending cases, or dismissing them on grounds other than a distinct finding that the decree is incapable of execution, that the decree-holder's right to get the decree executed is barred by limitation, or by any other rule of law, or on some similar ground on which the application has clearly been dismissed on the merits, whether the word “dismissed” or the words “struck off the file,” or any other similar words have been used in the order, the decree-holder is not barred by the force of any such order from presenting and prosecuting a fresh application for the execution of his decree.

I had not present to my mind the full effect of section 4 of Act No. VI of 1892 when I delivered my judgment in Pheku v. Pirthi Pal Singh.

Now, to apply the opinion which I have above expressed to this case it is necessary to see if the order of the 3rd of April 1888 was one by which the Court on the merits dismissed the application for execution.

That application was dismissed not on any finding that the decree could not be executed, or that the decree-holder, by limitation or otherwise, had lost his right to have his decree executed, but on a ground which did not go to the merits, i.e, to the right of the decree-holder to have his decree executed at all.

The application was “struck off,” the order should have said “dismissed,” on the ground that the applicant had not filed within the time granted to him for that purpose an inventory, which apparently should in law have been annexed to the application at the time it was presented, assuming as I do that s. 236 of the Code of Civil Procedure applied to the application. Consequently, [102] according to the opinion which I now entertain, the decree-holder, appellant here, was not by the order of the 3rd of April 1888 barred from presenting and prosecuting the application out of which this appeal has arisen. I would allow this appeal, but without costs, and direct the Court below to proceed to hear and dispose of the application of the 11th of February 1891. It may be that application must also be dismissed as not being in compliance with ss. 236 and 237, or one of them, of the Code of Civil Procedure, if they or either of them apply. That, however, is a matter for the Court below to deal with, as the materials are not before us which would enable us to say whether or not both or either of those sections apply. The reason why I would not allow the appellant his costs of this appeal is that I consider that the application out of which this appeal has arisen would not have been necessary if it had not been for the negligence of the appellant or the pleader who acted for him in making the application of the 21st of February 1888.

Tyrrell, J.:— I fully concur in the judgment and decretal order of the learned Chief Justice.

Knox, J.:— I have had the opportunity of seeing the judgment of the learned Chief Justice and I fully concur in the judgment and decretal order proposed by him.

Blair, J.:— I entirely concur in the judgment and decretal order of the Chief Justice.

Burkitt, J.:— I folly concur in the exhaustive judgment just pronounced by the learned Chief Justice and in the reasons given by him for the conclusions at which he has arrived. I desire to add a few words only. The “striking off” or “shelving” of an execution application is an order which may admit of different interpretations according to the circumstances under which it has been passed. (Hurronath Bhunjo v. Chunni Lal Ghose).

If such an order be passed on the merits of the application e.g, by a finding that the decree has already been fully satisfied or that the execution is barred by limitation or by some previous order which [103] would operate as a res judicata then, so far as the Court executing the decree is concerned, the application must be held to have been finally disposed of in a manner adverse to applicant's right to have the decree executed and no further application for execution of the same decree can be entertained unless in pursuance of a successful appeal to a superior Court.

But if such order has been passed in consequence of some default of applicant's not going to the merits of his right to have satisfaction of his decree (e.g, default in appearance, failure to pay process-fees or to put in copies of papers called for, &c, &c.) in such cases, though the order may put an end to the particular application in which it was passed, it does not bar a subsequent application for execution if the latter be made within the time allowed by the Indian Limitation Act (Act No. XV of 1877).

I entirely concur with the learned Chief Justice in holding that the matter to be inquired into respecting such an order is whether or not the Court which passed it intended to and did judicially decide that the decree-holder's right to have satisfaction of his decree was barred by some rule of law. If the Court did so decide, then the decree-holder's only remedy is by appeal, a fresh application for execution being barred. But in other cases another application for execution is admissible, subject always to the law of limitation. The rule laid down in the judgment of the learned Chief Justice is a reasonable and an intelligible rule. I am glad that it has been unanimously adopted by this Court.

Aikman, J.:— I fully concur in the conclusions arrived at in the judgment of the learned Chief Justice and also in the observations made by my brother Burkitt.

In each case the effect of the Court's order by which an application for execution is disposed of has to be considered. The order may have the effect merely of killing the particular application without any adjudication on the merits; on the other hand, the effect of the order may be to render the decree dead and incapable of execution, the former case there is nothing to prevent the decree-holder [104] putting in a fresh application within the period allowed by the law of limitation: in the latter case, the order, if allowed to become final, puts an end to the decree-holder's rights under his decree.

For instance, in the case before us, I have no hesitation in holding that the order of the 3rd of April 1888, by which the application of the 21st of February 1888 was struck off the file of pending cases owing to the failure of the decree-holder to file a list of the property to be attached, merely put an end to that particular application and decided nothing on the merits.

But the order of the 9th of June 1891 was of a different nature. It held that the effect of the order of the 3rd of April 1888 was to bar any subsequent application to execute. Had this order of the 9th of June 1891 been allowed to become final instead of being inpugned, as it now is, in appeal, it would have been fatal to any rights the decree-holder had under his decree.

Appeal decreed.