1. The decree in Original Suit No. 50 of 1891 allowed one set of costs and vakil's fee (Rs. 304-6-3) to defendants Nos. 1-3 and 10-18, and this is an application by defendants Nos. 2 and 3 to execute for Rs. 152-2-0, which, they say, is their share of the vakil's fee. The application is resisted by defendants Nos. 10 and 16, who say that they have received the sum (Rs. 304-6-3) from plaintiff, and that the decree is satisfied and satisfaction recorded.
2. The District Judge stated that satisfaction of the decree had not been recorded, and all that had been done was to record the petition of defendants Nos. 10 and 16. Refusing to recognize the alleged payment by plaintiff to defendants Nos. 10 and 16, he allowed defendants Nos. 2 and 3 to obtain fractional execution for Rs. 134, which he held to be their share.
3. Plaintiff appeals.
4. In support of the contention that defendants Nos. 2 and 3 are entitled to execute for their fractional share, I am referred to Tarruck Chunder Bhuttacharjee v. Divendro Nath Sanyal I.L.R. 9 Cal. 831 and Sultan Moideen v. Savalayammal I.L.R. 15 Mad. 343 On the other side Kuthath Haji v. Bavotti Haji I.L.R. 3 Mad. 79 is referred to.
5. Section 231 Civil Procedure Code, is the only provision which enables one of several joint decree-holders to execute a decree without the rest joining in the application, and all that it enables him with the leave of the Court to do, is to apply to execute the whole decree for the benefit of them all. The Court can pass such order as is necessary for the protection of the interests of those who have not joined. In the two cases quoted Tarruck Chunder Bhuttacharjee v. Divendro Nath Sanyal I.L.R. 9 Cal. 831 and Sultan Moideen v. Savalayammal I.L.R. 15 Mad. 343 the application was to execute the whole decree. These two cases are authority for the proposition that if payment has been made out of Court to one of the joint decree-holders for the benefit of them all, the Court will recognize the payment and record satisfaction to the extent of that decree-holder's share, allowing the applicants to execute for the balance only.
6. In this case defendants Nos. 2 and 3 do not admit that any payment has been made out of Court. Had they applied for execution of the whole decree it might have been open to the Judge to determine what proportion of the amount was due to defendants Nos. 10 and 16 and record satisfaction of that amount, allowing petitioners to execute for the balance. But the decree does not award any specific sum as due to defendants Nos. 2 and 3, and it must be executed as a joint decree or not at all.
7. On this ground it appears to me that the order of the Judge allowing fractional execution was wrong.
8. The order must be set aside and the execution petition dismissed with costs.
[Section 231: If a decree has been passed jointly in favour of more persons than one, any
one or more of such persons, or his or their representatives, may
Application by joint apply for the execution of the whole decree, for the benefit of
decree-holder. them all, or, where any of them has died, for the benefit of
the survivors and the representative in interest of the deceased.
If the Court sees sufficient cause for allowing the decree to be executed on an application
so made, it shall pass such order as it deems necessary for protecting the interests of the
persons who have not joined in the application.]