ABRAHAM Vs. VARKEY

JUDGEMENT

(1.) THE first court decree was passed on 3/2/1107. It provides for redemption of the decree schedule properties from the defendants on deposit of the mortgage amount and value of improvements by the plaintiffs. THE plaintiffs are also made liable for the costs of the defendants. In appeal filed by the 4th defendant the value of improvements awarded to him by the trial court was enhanced and the 4th defendant and the plaintiffs were awarded costs proportionate to their success in the appeal.

(2.) THE appellate decree was passed on 20/1/1109. On 13/8/1111 the 4th defendant filed an execution application for realising the costs due to him from the plaintiffs after setting off the amounts due to the plaintiffs. In reply to the objection filed by the plaintiffs to the execution application the 4th defendant filed a statement on 4. 10. 1112. In that statement the 4th defendant admitted that the decree in the case was subsisting on that date.

(3.) WITH regard to the first ground, the argument is that the application filed by the 4th defendant on 13. 8. 1111 for the realisation of costs due to him under the decree is an application for execution of the decree and that under Art. 166 Cl. 5 of the Travancore Limitation Act an application for execution of the decree filed within six years of the disposal of a former execution application is not barred by limitation. It is true that under that clause an execution application filed within six years from the date of disposal of a prior execution application is not barred. But that clause has to be read along with Explanation I to Art. 166. According to that explanation when the decree has been passed severally in favour of more persons than one, distinguishing portions of the subject matter as payable or deliverable to each, the application mentioned in Cl. 5 of the Article shall take effect in favour of only such of the said persons or their representatives as it may be made by; and when the decree has been passed severally against more persons than one, distinguishing portions of the subject matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. In the present case the decree allowing the plaintiffs to redeem the properties on payment of the mortgage amount and value of improvements and awarding costs to the 4th defendant is clearly a decree passed severally in favour of the plaintiffs and the 4th defendant, distinguishing portions of the subject matter as payable or deliverable to each. The liability of the 4th defendant under the decree to surrender possession of the properties on receipt of the mortgage amount and value of improvements and that of the plaintiffs to pay the costs of the 4th defendant cannot be said to be a joint liability. It is a case of distinguishing portions of the subject matter of a decree being made payable or deliverable by the plaintiff and the 4th defendant. In the circumstances we do not think that the execution application filed by the 4th defendant for costs enures to the benefit of the plaintiffs. In Jeddi Subbaraya v. Ramdas (ILR 22 bom. 998) it was held that in the case of a decree passed partly in favour of the plaintiff and partly in favour of the defendant application for execution by one party would not prevent limitation running against the other. This decision was followed by the Travancore High Court in Kaki Muthaliaru v. Sankara Pillai (1943 TLR 257) although the actual question decided in that case was whether in the case of a decree passed partly in favour of the plaintiff and partly in favour of the defendant an execution application filed by the defendant would amount to an acknowledgment of that part of the decree which was in favour of the plaintiff. Dhirundra Nath Sarkar v. Nischintapore Company (22 CWN 192) is another case in which the same view was held by the Calcutta high Court; and this decision was followed by the Travancore High Court in parameswaran Pillai v. Joseph (1943 TLR. 1004 ). Reference may also be made to the decisions in Chulam Mohhiddin v. Dambar (ILR 40 All. 206); Birendra Ghandra v. Thulsi Charan (85 IC 657); Troylokya v. Jyotti (ILR 30 Cal. 761); Hafiz Mud. Abdulla v. Amrao Singh (AIR 1934 Lah. 637 ). In all these cases it was held that when the rights and liabilities under a decree are separate and several an application by one party will not enure to the benefit of the other.