KOTIGARI RANGIAH CHETTI Vs. CHINTALAPALLI NARASAYYA

JUDGEMENT

(1.) In Letters Patent Appeal No. 36 of 1910, the appellant was given a decree for Rs. 665-2-3 with interest Rs. 467--8 and costs Rs. 138-4-0, in all Rs. 1,270-8-11, against both the defendants jointly and severally." Under the same decree the plaintiff had to pay 2nd defendant Rs. 1,003-11-5 for costs and 1st defendant Rs. 412-6-1 for costs.

(2.) The appellant who had obtained a transfer of the decree applied in Execution Petition No. 55 of 1914 to the District Court, North Arcot, to execute the decree against the 1st defendant. In the execution petition he claimed Rs. 665-2-3 and interest thereon and deducted the costs which plaintiff had to pay 1st defendant under the decree, the net amount of the claim being Rs. 859-2-10. The District Judge dismissed the execution application, holding that the appellant was not entitled to execute the decree against either of the defendants, on the ground that the amount which the decree-holder had to pay to the respective defendants exceeded the amount due to the decree-holder by the defendants jointly and severally. It is contended on behalf of the appellant that the provisions of Order XXI, Rule 19, Civil Procedure Code, do not apply, and that, inasmuch as the decree made the defendants jointly and severally liable for a sum of Rs. 1.270-8 11 to the plaintiff and made the plaintiff liable to pay only Rs. 412-6-1 to the 1st defendant, the plaintiff is entitled to take out execution against the 1st defendant for the balance due to the plaintiff from both defendants.

(3.) The question whether the appellant is under the circumstances entitled to execute the decree against the 1st defendant is not free from difficulty.