Dave, J.—This case comes before us on a reference made by a Single Bench of this Court. The question referred is as follows :—

Whether an application or execution which is admitted and registered by the executing court and which is proper in other respects should not be considered to have been made in accordance with law simply because it was presented by a vakil whose Vakalatnama was not signed by the decree-holder."

2. Before we proceed to answer the question, it would be proper to set out briefly the facts which have given rise to the point referred to us. On 27tb November, 1943, respondent Deoraj, obtained a money decree against, appellant, Govind Singh. On 20th October, 1949, the decree-holder presented an application for execution, but it was dismissed for default on 19.12.49. Thereafter, a second application for execution was presented on behalf of the decree-holder on 16.12.52. It was registered on 20-12 52 and a notice under O. 21, R. 22, C.P.C. was ordered to issue against the judgment debtor. On 24.1.53 the case came for hearing before the court. On that day, judgment-debtor was absent and so he passed an order, in his absence for attachment of his property and the case was fixed for hearing on 21.3.53. On that day judgment-debtors counsil presented an application and raised an objection that the second execution dated 16.2.52 was not validly presented. It was pointed out that it was presented by a person who was not properly authorised by the decree holder and so the execution application was not in accordance with law. When this application was presented it was found that Shri Kishanmal Vakil who had presented the execution application on 16.12.52 had got his Vakalatnama signed by the decree-holders brother, Mohanraj, instead of the decree-holder though the execution application itself was signed by the decree-holder, Deoraj, himself. On 4th April, 1953, Shri Kishanmal presented a proper Vakalatnama. It was urged on behalf of the judgment-debtor that subsequent presentation of a proper Vakalatnama by Sari Kishanmal could not cure the defect of the invalid presentation of the execution a prication and that if the execution application be deemed to have been presented on 4th April, 19i 3, it would be time barred. It was contended on behalf of the decree-holder that Deoraj and Mohanraj were real brothers, that there were several decrees in favour of both the brothers jointly, that the present decree was in favour of Deoraj only but Shri Kishanmal got the Vakalatnama signed by Mohanraj under the impression that it was a joint decree in favour at both, that this was a bonafide error which could be condoned by the court and it was therefore, not fatal. The executing court dismissed the judgment debtors objection on the ground that the error pointed out by him was only a procedural irregularity arising from a bona tide mistake on the part of the decree-holders counsel. Against the said order dated 12.12.53 the judgment-debtor went in appeal to the District Judge, Jodhpur, but since he got no success, he filed a second appeal to this Court.

3. The Judge who heard the appeal in Single Bench found that there was conflict of views amongst various High Courts on the question involved in this case and so he has referred the question set out above.

4. Learned counsel for the appellant has urged that according to O. 3, R. 1, C.P.C. any appearance, application or act in or to any court may be made or done either by the party in person or by his recognized agent or by a pleader on his behalf and, therefore, the act of presenting the application could be made by the decree-holders pleader, if he was properly appointed. It is pointed out that O. 3, R. 4, C.P.C. lays down that no pleader shall act for any person in any court unless he has been appointed for the purpose by such person, by a document in writing signed by such person, and since in the present case the vakalatnama was not signed by the decree-holder or by his recognised agen

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