1. The appellant here is one of the judgment-debtors under the decree in O.S. No. 41 of 1936, in the Court of the District Judge of Bast Godavari. That decree was passed in a suit by the plaintiff to direct the defendants to render an account of their administration of an estate; and as usual in such suits, originally court-fee was paid upon the estimated value of the decree expected. It was found upon adjudication that a larger sum than this was due to the plaintiff and in accordance with the provisions of Section 11 of the Court Fees Act, a clause was inserted in the decree that the decree should not be executed unless the plaintiff pays a further court-fee or Us. 157-8-0, which would have been payable if he had originally sued for the sum decreed. After this decree was passed, the 4th defendant is said to have offered to plaintiff the amount due under the decree out of Court. The plaintiff, however, refused to receive it and thereupon the 4th defendant deposited that amount in Court. There was then an application by the plaintiff to withdraw the amount. The Court refused to issue any cheque for the amount deposited unless plaintiff paid the additional court-fee stipulated for in the decree. The plaintiff accordingly paid this sum and the amount deposited was made over to him by cheque. After this the plaintiff has filed the present execution application to recover from the 4th defendant under the decree the amount of the additional court-fee which he had to pay, and this execution petition has been ordered. Fourth defendant has consequently appealed.
2. The argument in the appeal is that the order of the Court insisting upon plaintiff depositing additional court-fees before being allowed to obtain the cheque is wrong, that the 4th defendant by paying into Court all that was due on that particular day on the decree has completely satisfied the decree, that the Court has no discretion but to issue an order unconditionally to the plaintiff for a cheque for the amount of this deposit and that as the decree has thus been fully satisfied before the payment of Rs. 157-8-0, was made by the plaintiff he can no longer seek to execute it.
3. Learned Counsel for the appellant relied upon a ruling reported in Balaguruswami Naicken v. Guruswami Naicken (1924) 48 M.I.J. 506. That was a case where money had been deposited by the judgment-debtor into Court in 1920. The immediate question before the learned Judges was one of limitation. There had been an execution application in 1917 and there was a later execution application in 1923 and it was held that the application of the decree-holder to withdraw by means of a cheque the money which the judgment-debtor had deposited in Court was not an application in execution or a step-in-aid of it, the reason being that the Court could make the payment without any reference to the judgment-debtor, and that it was a formal and almost automatic act on the part of the Court. A distinction was drawn between such. money and money which had been deposited in Court as a result of proceedings taken in execution; but in that case the money was deposited voluntarily and therefore an application to receive a cheque was not an application in execution. It has accordingly been argued that in the present case where the money was voluntarily deposited there was no application in execution by the plaintiff, and as an extension of that argument it is sought to establish that there could not be an application in execution as execution was already over. We are not prepared to hold that this extension can be justified. It is no doubt true that the fourth defendant had deposited in Court on a particular day all that could be declared to be due by him under the decree on that day. But we do not see how that fact is sufficient for the proposition that he had completely satisfied the decree. We must road the decree as a whole just as the executing Court, when faced with the necessity of deciding whether to issue a cheque to the plaintiff or not, is bound to do. And if one reads the decree as a whole, one is compelled to conclude that it is not until the plaintiff actually pays the additional court-fee, which is obligatory upon him according to the terms of the decree, that the full liability of the fourth defendant will be ascertained. It cannot and has not been denied that if this payment of additional court-fee by the plaintiff had been made before the decree was fully satisfied, then the plaintiff had every right to take steps in execution against the fourth defendant to reimburse himself. And, as we have said, it seems to us impossible to hold that where the fourth defendant's liability is likely and indeed almost certain to be increased by this additional sum in the matter of costs, his payment of a total sum which ignores this contingency can be hold to be a complete satisfaction of the decree.
4. In these circumstances we are of opinion that the learned Judge, although he did not himself discuss this matter in any detail, in a very brief order, has come to the right conclusion that the execution petition filed by the plaintiff was a competent one and execution ought to be ordered. The appeal accordingly fails and is dismissed with costs.