KANAK PROVA DEBI Vs. DHIRENDRA NATH ROY

JUDGEMENT

(1.) This is an appeal by the judgment-debtors against the order of the District Judge affirming the decision of the Munsiff rejecting their application that the execution of the decree is barred by limitation.

(2.) The only question in this case is whether an application made by one of two joint decree- holders for execution of the joint-decree with reference to his share of the interest awarded to him under the decree keeps alive the decree for subsequent execution. In this case the decree for costs was made by the trial Court severally in favour of the respondents. The judgment- debtors who were the plaintiffs in that case appealed and on their appeal, the appellate Court awarded costs to the respondents in this case jointly. In 1917 within three years of the date of the decree both the two sets of decree-holders separately applied for execution of the decree to the extent of what each considered to be his separate interest. It does not appear that any objection was takes on behalf of the judgment-debtors, nor did the Court proceed under Order 21, Rule 17 or reject the application on the ground that such application was not maintainable. Within three years after that execution both sets of decree-holders again applied for execution of the decree severally. In 1923 only one set of decree-holders made an application for execution. In 1924 the same decree-holders presented a fresh application for execution of the decree apparently for their share or what they considered to be their share in the decree. The other decree-holder was subsequently allowed to be joined in the application and the application proceeded as if made by both sets of decree-holders.

(3.) The objection now is that under Order 21, Rule 15 any one or more of joint decree-holders are allowed to apply for execution of the whole decree for the benefit of them all; and it is contended that the Code does not provide for an application for execution by a joint decree- holder of a share of the decree. It is urged therefore that the applications made from 1917 downwards were not applications in accordance with law, and, therefore, the present application in 1924 for execution of the decree was barred by limitation. As the learned District Judge has observed the decisions of the several High Courts on that question are not uniform. The Allahabad Court has held that such an application is not in accordance with law, and, therefore, does not keep alive the decree : see Ram Autar V/s. Ajudhia Singh [1876] 1 All. 231 and Collector of Shahjanpur V/s. Raja Jagannath Singh [1881] 4 All. 72. On the other hand it was held by this Court in the case of Koylas Nath Ghose V/s. Nitya Shama Dassee 15 W.R. 449, that although the application for such execution is irregular and ineffectual for the purpose of execution, if made bona fide under a misapprehension of the law, it may be regarded as a proceeding which keeps the decree alive. Similarly it was held in the case of P.P. Kuthath Haji V/s. Bavotti Haji [1881] 3 Mad. 79, that although the Civil Procedure Code does not allow one of several decree-holders to apply for partial execution of a joint decree, yet an application by one of such decree-holders. for execution of the decree in respect of so much of the relief granted to all, as he considers appertains to him individually, may keep in force the decree as being an application according to law.