The requirement for proper authorization in filing execution applications and the inapplicability of Section 14 of the Limitation Act when the executing court has jurisdiction but the decree-holder fails to move the court in accordance with the law.

Horwill, J.

1. The decree was passed on 28th July 1928. An execution petition was filed on 24th July 1931, which was not presented either by the party or by a vakil duly authorized on his behalf. A notice went on the petition and the judgment-debtor pleaded a payment of Rs. 50. Thereupon three months time was granted and the petition struck off. On 22nd January 1932 another E.P. was filed in which the judgment-debtor, without notice, was arrested. He paid Rs. 25, part satisfaction was recorded and he was released. When the present E.P. was filed on 25th November 1933, the Court discovered that the gentleman who had been conducting the two prior execution petitions was not in possession of a vakalat and it therefore held that the two former petitions were not in accordance with law and. that as the present execution petition was filed more than three years after the decree, it was out of time. It was accordingly dismissed. In revision it is argued (1) that all these three petitions should be considered as one which was interrupted by the District Munsif for statistical purposes and that the vakalat filed in the present application must be deemed to validate all the earlier proceedings; (2) that although the vakil, Mr. Narasimhachari, who had not been given a proper vakalat, was not therefore authorized to conduct the proceedings, yet nevertheless he was a person who, within the meaning of Order 21, Rule 11(2), was a person acquainted with the facts of the case and entitled to make those applications; (3) that on 18th September 1931, in the first E.P. the judgment-debtor acknowledged a payment of 2nd September 1929, within three years of the decree, and that this therefore saves time; and (4) that the judgment-debtor is precluded by the principle of constructive res judicata from raising any objection to the validity of the earlier proceedings as he did not do so during the currency of those proceedings.

2. With regard to certain questions of limitation, especially as to whether execution petitions could be filed more than 12 years after the decree, it has been held that where previous execution applications of the same nature have been struck off and time given to the judgment-debtor, such acts are merely for statistical purposes and that it must be presumed that the petitions struck off were in law left pending until a fresh application to continue the same proceedings was filed. If however the first presentation was not one in fact and the order of the Judge was not made in pursuance of an application made in accordance with law and was therefore void, I do not see how a vakalat filed at a later time can validate the earlier proceedings. Whether or no the application was one in accordance with law and whether the acts of the Judge were in pursuance of an application made in accordance with law, will be presently considered. If all these points are decided against the decree-holder, the subsequent filing of a vakalat will not be of any avail.

3. It is contended that an execution application need not be presented by the decree-holder or by any person specially authorized on his behalf and that the presentation by any person acquainted with the facts is sufficient. It has been contended that the presentation is not an act contemplated by the Civil Procedure Code and is a mere formality. This argument is based upon the wording of Order 21, Rule 11(2); but that rule only describes the form of the application. It is necessary to distinguish between an application proper, which is a request to the Court to take certain proceedings, and the form in which that request is framed in a document which, although very different, is also spoken of as an application. Order 21, Rule 10 says: "Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree" whereas Order 21, Rule 11(2) merely sets out the forms in which the application is to be drafted. Any person acquainted with the facts can. sign or