- (1.) The facts of this case are extremely complicated, but it becomes unnecessary to state them fully here in consequence of the turn which the argument has taken, and the very simple ground on which our judgment will proceed. The present appellant, Puma Chandra Mookerjee, is one of several persons representing the parties who obtained a decree against the respondents, so long ago as the 23rd of June. 1838. The parties who obtained that decree were three brothers, named Durga Charan Mookerjee, Gauri Charan Mookerjee, and Abbaya Charan Mookerjee. Puma Chandra, the appellant before us, is one of the sons, now as I understand the surviving son of Durga Charan. It seems that execution was taken out jointly by these three decree-holders in the first instance, the earliest application bearing date the 17th of November 1838; and this joint execution continued down to the 14th of July 1843. Since that time, it is admitted that no proceeding whatever has bean taken on the part of the decree-holders jointly, but applications have been made from time to time, sometimes effectual applications either in the Court of the Judge or in that of the Principal Sudder Amen, by the representatives of one or other of those brothers. We had a great deal of argument on the last hearing of this case as to whether the proceedings so taken would be effectual proceedings taken for the purpose of keeping the decree in force such as to save the decree-holders from the operation of sections 20 and 21 of Act XIV of 1859. The point, however, which alone we have determined to deal with and our decision upon which is sufficient to dispose of the case, is whether the application before us, which was made by the appellant in the Judge's Court, is one on which execution can proceed. It seems to me as clear as anything can be that, it is not such an application. In the first place it is not an application to execute a decree, but only an application to give notice to the judgment-debtors. Notice is to be given to the parties against whom execution of a decree is sought under section 216 of the Code of Civil Procedure. That notice is to be issued by direction of the Court when the Court has before it an application to execute, drawn up in conformity with section 212. I think that for that reason alone, the Judge would have been bound to refuse to proceed upon this application. He ought to have said, "when I have before me an application to execute a decree which is in force, I will take the application into consideration, and if the circumstances require it, I will direct notice to be served."
(2.) But in addition to this, the application was defective in various other particulars. In the first place it is I think on the face of it, and specially taken in connection with other applications either made simultaneously or previously pending in the same cause, an application made, not with a view to the execution of the decree, but with a view to the execution of an aliquot part of the decree. It is defective also in the statement required by law of the names of the parties, the amount of the debtor damages due upon it or other relief granted by the decree, the amount of costs if any were awarded, and the mode in which the assistance of the Court is required, whether by the delivery of the property specifically decreed or otherwise.
(3.) It is contended that the form in which the application was made as to its relating to an aliquot part of the decree, was founded upon and justified by an order made in this cause by the Judge of Hoogly in 1852, and also by a further order of another Judge made in 1865. As to the order made originally in 1852, without considering how far that order was wrong (for wrong it certainly was), it is enough to say that it was made in a different state of the law, long previous to Act VIII of 1859, and can have no bearing on this application which is governed by the present law. As to the order of the Judge made in 1865, that no doubt was an order made under Act VIII of 1859; but it seems quite idle to contend that any order made in the cause in 1865 would justify the parties in proceeding upon a wrong course when the objection was taken in 1868.;