MADAPPA GANAPA HEGDE Vs. JAKI GHOSAL GABRI GHOSAL

JUDGEMENT

(1.) This is an appeal in execution and the appellant was the original applicant for execution. He is the purchaser of the interest of the plaintiff and the and defendant in Suit No. 74 of 1902 which was a partition suit. On the 31st March 1905, a decree was made in the suit, and the present application is for mesne profits owing under that decree from the 19th December 1900.

(2.) The lower Court has found that the mesne profits due amount to Rs. 346-2-8, but admittedly that calculation is incorrect, and the exact sum due for mesne profits would be Rs. 445-8-0. On the other hand, under the same decree the respondents were entitled to costs which, as has now been ascertained, amount to Rs. 855.

(3.) The case, therefore, appears to be one for the application of the rule enacted in Order XXI, Rule 19. For, this application is made for the execution of the decree under which two parties are entitled to recover sums of money from each other. The sums being unequal, Clause (b) of the rule provides that "execution may be taken out only by the party entitled to the larger sum, and for so much only as remains after deducting the smaller sum." It would follow from this provision that the appellant, who under the decree is entitled only to the smaller sum, has no right to apply for execution of the decree. But it is answered the appellant has that right, because the respondents claim to their costs is barred by limitation. It is admitted that if the respondents claim to their costs is to be considered as a separate claim apart from the other provisions of the decree, then it is barred under Article 182 of the Indian Limitation Act. But it is not the fact that the respondents here are seeking to execute the decree in respect of their claim for costs. They are merely using those provisions of the decree to resist the application made by the other side, and I am of opinion that they are entitled to rely upon the decree for that purpose. For, as I read the rule, it contemplates that the decree should be regarded as a single indivisible order of the Court enforceable only for the balance, that is the difference between the two sums awarded, and that balance becomes awardable by the Court without the intervention of the parties as soon as the amount of the balance is determined. Though the respondents would be barred by limitation from recovering the larger sum awarded to them under the decree, that circumstance cannot, I think, avail to enable the appellant to take out execution in a manner expressly forbidden by the Rule. On this ground, I think, that the appellant s attempt to execute his decree for the smaller sum, without reference to the larger sum which the decree awards to his adversary, must fail.