Adikando Panigrahi vs Yetiraju Narayanaswami

Fazl Ali, J.—The main question which has been argued in this case is one of limitation, and it arises upon the following facts. The appellant and respondent 2 obtained a money-decree against respondent 1 on 23rd December 1930. After this, six execution cases were started prior to the present execution proceedings. The most notable feature of these execution proceedings is that each execution proceeding was started by one only of the two decree-holders, and in none of them the executing decree-holder purported to act under Order 21, Rule 15, Civil P.C. The sixth execution case was started on 24th November 1939 by respondent 2, and it was dismissed on 14th February 1940, on the application of respondent 2 stating that the decree had been fully satisfied. The present execution was started by the appellant on 4th April 1940. In this proceeding notice was issued on respondent 2, and he pleaded that the decree had been already satisfied and therefore no execution case could proceed. It was also contended by him that the execution was time-barred.

The Courts below have held, in the first place, that the first point raised by respondent 1 cannot succeed. It has been held in Sadho Saran Panda v. Mt. Subhadra AIR 1925 Pat. 822 that it is not open to one of two joint holders of a decree to certify satisfaction of the whole decree so as to bind the other decree, holder, although he can certify satisfaction in respect of his own interest in the decree. In view of this decision it was rightly held by both the Courts below that the order passed on 14th February 1940, recording full satisfaction is not binding on the appellant. The Courts below have further held that the appellant can recover the amount due to him for his interest in the decree, unless the application is time-barred.

In regard to the second contention, the Courts below have concurrently held that the application is time-barred. They have based this view upon the fact that none of the previous execution petitions were petitions in accordance with law, because in each case only one of the decree-holders sought to execute the decree without having recourse to the provisions of Order 21, Rule 15. The learned Courts below have based their view upon the decision of a Division Bench of this Court in A.J. Meik, Esqr., Manager of Barabhum Encumbered Estate, Manbhum Vs. The Midnapur Zemindary Company, Ltd., In that case it was held that a decree in favour of two persons jointly cannot be executed by one of such persons in respect of what that person considers his share of the decree, nor can the whole decree be executed by one of the decree-holders alone unless he applies for execution on behalf of all the decree-holders, or for the benefit of them all. Jwala Prasad J. who delivered the judgment in that case, observed as follows:

The defects in the requirements under Rules 11 to 14 are only of a. formal character, whereas Rule 15 goes to the root of the execution of the decree itself. The contention of the judgment-debtor must, therefore, prevail, and it must be held that there was no valid application for execution of the decree before the lower appellate Court, and the same must, therefore, be dismissed.

In my opinion, the observations of the learned Judge have been misunderstood by the Courts below. The actual decision in the case is clear from the head-note and cannot be said to go beyond that. That case cannot be regarded as an authority for the view that the applications made by a single decree-holder cannot be taken into consideration on the question of limitation. On this point there is a direct provision in Article 182, Limitation Act. Clause (5) of that article runs thus:

Where the application next hereinafter mentioned has been made, the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order.

Explanation 1 provides that

where the decree or order has been passed jointly in favour of more persons than one, such application (that is to say application mentioned in Clause 5), if made by any one or more of them, or by his or their representatives, shall take effect in favour of them all.

In my opinion, this provision is enough to save limitation and therefore the view taken by the Courts below that the application is time-barred cannot be upheld. A question still arises whether the order of the Courts below dismissing the execution case cannot be supported on another ground. In the present case the appellant has applied for the execution of the entire decree ignoring the fact that a petition of satisfaction has already been filed by the joint decree-holder respondent 2. The appellant has applied for permission to execute the decree under Order 21, Rule 15 for the benefit of himself and his joint decree-holder. The question is whether such permission can be granted when the appellant deliberately ignores the fact that his joint decree-holder has already entered satisfaction. If the appellant had been trying to execute the decree only for his share, other considerations might have prevailed, but it t seems to me upon the application as it has been framed that the execution was rightly dismissed.

On this view I will dismiss this appeal, but there will be no order as to costs.