JUDGMENT

Fletcher, J. - I agree in the result of the judgment about to be delivered by Mr. Justice Richardson.

Richardson, J.

2. The appellant is a decree-holder and the respondent is his judgment-debtor. The appellant having applied for the execution of his decree by the attachment and sale of the respondent's holding, the latter preferred an objection on the ground that the holding was a raiyati holding, not transferable without the consent of the landlord. The petition of objection was filed on the 20th February 1914. Notice of it was duly given to the decree-holder and the matter was set down for hearing. There were several adjournments, the last being to the 18th July 1914. On that date the petitioner did not appear and the petition was dismissed for default.

2. The petitioner then applied to have the order of dismissal set aside. The application purported to be made under Rule 9 of Order IX. On the 24th October 1914 the learned Subordinate Judge held that the order having been made in the course of proceedings in execution, the case did not come within the purview of Order IX, He refused, therefore, to set the order aside. But he further held that nowithstanding the order, the respondent was at liberty to file a fresh petition to precisely the same effect as the original petition. The respondent having done so, his objection was allowed and the holding was released from the attachment.

3. Now it is obvious that if this is the law, a judgment-debtor would be in a position to file an unending series of objections on the same ground to the execution of the decree. By neglecting to appear on the date fixed for the hearing of a petition, he would obtain the right to present another. Any order of dismissal for default would be nugatory. The Court would be powerless and the decree-holder might be kept at bay for an indefinite time. The position, therefore, requires some examination.

4. It can hardly be doubted that the proceedings in question were proceedings in execution, and there is authority in this Court for the proposition that Section 141 of the Code has no application to proceedings in execution and that in consequence such proceedings are outside the scope of the general provisions of the Code relating to suits, such for instance as those contained in Order IX. In this connection the term 'suits' is distinguished from proceedings in execution, which are proceedings in suits, in the nature of interlocutory proceedings. This view appears to be founded on such decisions of the Privy Council as those in Ram Kirpal v Rup Kuari 11 I. A. 37 : 6 A. 269 : 4, Sar. P. C. J. 489 : 3 Ind. Dec. (N.S) 718, Beni Bam v. Nanhu Mal 11 I. A. 181 : 7 A. 102 : 4 Sar. P. C. J. 564 : 4 Ind. Dec. (N.S) 138 and Thahur Prasad v. Fakir-Ullah 22 I. A. 44 : 17 A. 106 : 5 M. L. J. 3 : 6 Sar. P. C. J. 526 : 8 Ind. Dec. (N.S) 393 (P. C).

5. In Ram Kirpal's case 11 I. A. 37 : 6 A. 269 : 4, Sar. P. C. J. 489 : 3 Ind. Dec. (N.S) 718, which was followed in Beni Ram's case 11 I. A. 181 : 7 A. 102 : 4 Sar. P. C. J. 564 : 4 Ind. Dec. (N.S) 138, it was held that the provisions of the Code of 1877 on the subject of res judicata (corresponding to Section 11 of the present Code) did not apply to decisions arrived at in execution proceedings and that the binding force of such decisions depended not on the Code but on general principles of law.

6. In Thakur Prasad's case 22 I. A. 44 : 17 A. 106 : 5 M. L. J. 3 : 6 Sar. P. C. J. 526 : 8 Ind. Dec. (N.S) 393 (P. C), the question was whether an application for execution having been withdrawn without the express permission of the Court to make a fresh application, the decree-holder was debarred from again applying for the execution of his decree. It was held that Section 647 of the Code of 1882 (corresponding to Section 141 of the present Code) could not be so construed as to make Section 373 of the Code (corresponding to Order XXIII, Rule 1, of the present Code) applicable to the case. In stating the reasons for the decision L