Section 141, Code of Civil Procedure, does not apply to proceedings under Section 144, Code of Civil Procedure, because Section 144 is a proceeding in execution, and Section 141 specifically excludes proceedings in execution from its scope.

Mudholkar, J—This is an appeal from an order of remand passed by the Third Additional District Judge, Akola.

2. The relevant facts are briefly these. Respondents 1 and 2 had made an application to the Court of Second Civil Judge, Class II, for restitution. That application was dismissed on 13-1-1950 in the absence of Respondents 1 and 2 but in the presence of the opposite side. Respondents 1 and 2 then made a fresh application under Section 144, Code of Civil Procedure. The Court of the Civil Judge dismissed that application on the ground that it was barred by Order 9, Rule 8 of the Code. In appeal the learned Additional District Judge held that the application was not barred and he remanded the case to the Court of Civil Judge for being dealt with further according to law. The Appellant has therefore come up in appeal before this Court.

3. Shri W.B. Pendharkar, who appears for the Appellant contends that an application under Section 144 not being an application in execution is by operation of Section 141, Code of Civil Procedure governed by Order 9 thereof, and that therefore the dismissal of such an application in the absence of the applicant and the presence of the opposite side precludes the applicant from making a fresh application for obtaining the same relief. In support of his argument that an application under Section 144 is not an application in execution, he refers to two decisions of his Court - Allawali v. Kesharimal, 1947 ILR(Nag) 176 and - Laxmichand v. Mst. Sunderabai L.P.A. No. 2 of 1948, D/-11-12-1951 (Nag). Shri Tare, who appears for Respondents 1 and 2, refers to a decision in - Jagendra Nath Singh v. Hira Sahu, 1948 AIR(All) 252, which appears to take a view contrary to that taken in the two decisions of this Court. Sitting singly I am bound by tie Division Bench decisions to which I have just referred and I do not think it necessary to refer for consideration by a Full Bench the question whether those decisions are correct because, in my opinion, the appeal can be decided even upon the view that a matter under Section 144 is not a matter in execution.

4. Section 141, Code of Civil Procedure reads thus: The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

The corresponding Section in the Code of 1882 was Section 647 and it ran thus: The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction 'other than suits and appeals.

There was divergence of opinion in several cases as to whether the word's underlined (here in ' ') included proceedings in execution and therefore an Explanation was added to the Section by the Code of Civil Procedure (Am.) Act VI of 1892, which ran thus: Explanation: This Section does not apply to applications 'for the execution of decrees which are proceedings in suits.

In the present Code, the words "in regard to suits" have been added and the words "other than suits and appeals" and the Explanation have been deleted. The question is whether this has introduced a change in law.

5. In a case which went up before their Lordships of the Privy Council after the addition of the. Explanation to Section 647 of the Code of 1882 - Thakur Pershad v. Fakirullah, their Lordships held that even without the Explanation that Section did not apply to execution proceedings. Their Lordships observed: Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships and so forth and do not include executions.

and approved the view taken in - Bunko Behary v. Nil Madhub. In that case the learned Judges held that Section 647 did not apply to execution proceedings. Their reasons for coming to this conclusion were these: It appears to us that this provision of the Code was intended to apply to matters such as applications