Prinsep and Banerjee, JJ.
1. A decree was passed for a sum of money under a mortgage, which was made absolute under Section 88 of the Transfer of Property Act on 11th March 1890, but no further order for sale was made under Section 86 of the Act, On the 23rd March application for execution was made by sale of the mortgaged property, and an order was passed on 1st May for putting in affidavits and for the deposit of the necessary fees within one week. This was not done, nor did the case come on for hearing in due course after expiry of the term so fixed or on any other day appointed for that purpose, but it apparently was taken up on 4th July, and the application was dismissed. A fresh application for execution was made on 9th August, and objections taken by the judgment-debtor were overruled.
2. The debtor now appeals, contending that execution cannot proceed.
3. It is first objected by Mr. Garth, for the appellant-judgment-debtor, that this application is informal and cannot be acted upon, inasmuch as it does not expressly state in what manner the decree is to be executed, and we are referred to the recent decision of a Full Bench of this Court in the case of Asgar Ali v. Troilokhya Nath Ghose I.L.R. 17 Cal. 631. We find, however, that though the application for execution before us is not complete in itself so as to show in what manner execution is to be taken out, still it is capable of being acted upon, for it refers to the former application in which the mortgaged properties were set out, and it prays that the decree may be executed by sale of those properties. We think, therefore, that this objection at most is regarding only a technical irregularity, in form rather than in substance, and that the Court was competent to proceed, taking the former application which is on the record of the suit as part of the application then before it, so as to indicate how the decree should be executed.
4. It is next objected that execution is barred in consequence of the dismissal of the former application to execute without leave to make a fresh application, and in support of this the case of Radha Charan v. Man Singh I.L.R. 12 All. 392 decided by a Full Bench of the Allahabad High Court, is cited. The practice there laid down is certainly not what has been in force in the Courts of this Province, which has been that described in the judgment of a Full Bench of this Court in the case of Eshan Chunder Bose v. Pran Nath Nag 14 B.L.R. 143; 22 W.R. 512. The Code of 1882 and the Law of Limitation of 1877 have made no alteration in the law to affect that practice, although the view of one of the learned Judges in that case in unmistakable terms strongly advocated an alteration in the law so as to introduce the practice now prescribed by the High Court at Allahabad. It was not indeed expressly laid down in that case that the rule regarding the effect of the abandonment or withdrawal of a suit without leave to institute a fresh suit does not apply to an application for execution of a decree, but it was held that the permission of the Court to a second application to execute the same decree was unnecessary, which is practically the same in its result; and this has been the practice of our Courts in such matters. We observe that the High Court of Bombay in two cases--Tara Chand Megraj v. Kashi Nath Trimbak I.L.R. 10 Bom. 62 and Shankar Bisto Nadgir v. Narsingh Rao Ram Chandra I.L.R. 11. Bom. 467--has prescribed a similar procedure overruling the previous case of Pirjade v. Pirjade I.L.R. 6 Bom. 681 to the contrary, and in the former of these cases it was expressly held that Sections 373 and 374 do not apply to applications for execution. In this view it seems unnecessary for us to state our reasons at length for declining to follow the opinion of the Full Bench of the Allahabad Court beyond stating that in numerous instances the Code itself, as well as the terms of the Limitation Act, show that the procedure of the Code in regard to suits cannot be strictly applied to matters of execution, and in no instance is this more evident than with regard to Sections 373 and 374.
5. On general grounds, therefore, we should not be disposed to hold that this application to execute was barred. But in the present instance there is another fatal objection. The order of the 4th of July was not passed after notice to the party concerned. The case was apparently taken up accidentally at some time convenient to the Court itself, which is not in accordance with the regular procedure of our Courts. The Code contemplates that on the adjournment of a suit or other proceeding a day shall be fixed for its hearing. No order therefore passed on any other day, except in the presence of the parties and without objection raised, can be binding on them. We cannot agree with the learned Counsel that because the decree-holder did not comply with the order of the Court of the 1st May to file the necessary affidavits and deposit the necessary fees within one week his application stood dismissed, because if the case had been regularly brought on, it is not improbable that some cause might have been shown for an extension of that time, and the order was not peremptory in its terms. The order passed on 4th July without any notice to the decree-holder, and in his absence, seems to us to be open to serious objection, and should not, in any view of the matter, be regarded as precluding him from further proceedings.
6. We accordingly dismiss this appeal with costs.
7. We should remind the Subordinate Judge that in cases under Section 88, Transfer of Property Act, he should be careful to draw up the order strictly in accordance with the law.