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.
4. Order XXI, Rule 19, Civil Procedure Code, provides that where application is made to a Court for execution of a decree under which two parties are entitled to recover sums of money from each other...if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum, and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.' The object of the rule is to prevent each side executing a decree in respect of sums due whether for costs or otherwise under the same decree. In this case, the plaintiff holds a decree against the two defendants jointly and severally.' The two defendants are individually entitled to different amounts for costs, which in the aggregate exceed the sum due to the decree-holder. We do not think there is anything in Order XXI, Rule 19, Civil Procedure Code, to prevent the appellant from taking out execution of the decree against the 1st defendant alone for the balance due to him by both the defendants, until the 2nd defendant makes an application in execution to recover the amount due to him by the plaintiff under the decree.
5. If the view taken by the District Judge is to be accepted, it is difficult to see how and by whom the decree for the balance due by the plaintiff could be executed. Should the 2nd defendant take out execution for the costs due to him he would be met by a similar objection that, the sum to which he alone is entitled under the decree being less than the amount for which he and the 1st defendant are jointly and severally liable to the plaintiff under the decree, he (the 2nd defendant) is also not entitled to execute the decree.
6. We think that the words ' two parties' in the phrase two parties are entitled to recover sums of money from each other' in Order XXI, Rule 19, means the two parties or sets of parties who are parties not only to the suit in which the decree was passed but also to the application referred to in the opening sentence of the rule. In the present case the application is directed only against the 1st defendant and hence in applying the provisions of Order XXI, Rule 19, the two parties to be considered as entitled to recover sums of money from each other' are the plaintiff and the 1st defendant only. The old Section 247 did not contain the words where application is made to a Court for the execution of a decree' which have been inserted in the present Order XXI, Rule 19. It may be that the second defendant may not care to recover the costs due to him alone by the plaintiff. If he applies for execution, then, of course, as between him and the plaintiff the Court would be bound to enter satisfaction for the smaller sum of Rs. 800 and odd due to the plaintiff by 2nd defendant (jointly and severally with the 1st defendant) and to set it off towards the sum of Rs. 1,000 and odd due to the 2nd defendant. When satisfaction is so entered, the plaintiff cannot continue the execution for that smaller sum of Rs. 800 and odd under the present application against the 1st defendant alone, as satisfaction for the smaller sum entered upon the 2nd defendant's application for execution would ipso facto enure as satisfaction in the 1st defendant's favour also. In that case, the 2nd defendant would be entitled to take out execution only for the difference between the Rs. 1,000 and odd and the Rs. 800 and odd.
7. If the 2nd defendant had first applied for execution against the plaintiff for the Rs. 1,000 and odd, or if the plaintiff had first applied for execution against the 2nd defendant for Rs. 1,200 and odd, then only Rs. 200 and odd would have remained due to the plaintiff against both the defendants Nos. 1 and 2, and the 1st defendant to whom Rs. 400 and odd was due by the plaintiff would in that case have been the party entitled to take out execution against the plaintiff for the difference of Rs. 200 and odd between the Rs. 400 and odd due to 1st defendant and the Rs. 200 and odd due to the plaintiff. That there would be a difference in the person entitled to execute for the above-mentioned balance of Rs. 200 and odd (namely, whether it is to be the 1st or the 2nd defendant), and that it should depend upon whether (1) the plaintiff or the 1st defendant first put in an application for execution (one against the other) or whether (2) the plaintiff or the 2nd defendant put in an application for execution (one against the other) is no doubt an anomaly; but we think that under the provisions of Order XXI, Rule 19, which necessitates an application as a preliminary condition of the exercise of the power and duty of the Court to enter satisfaction of the smaller sum between the parties to the application, such a result follows. Any other construction of the section would lead to more serious anomalies and inconveniences,
8. It was alleged in the course of the arguments that the 2nd defendant had since applied against the plaintiff for execution but there is nothing on the record to show it, and we have no doubt that the Court would action that application according to law, and it may be that the plaintiff's present application against the 1st defendant cannot proceed further if the Court, in so acting, has to enter satisfaction to the plaintiff's claim. On the materials before us, we must set aside the District Judge's order and direct him to restore Execution Petition No. 55 of 1914 to the file and dispose of it according to law.
9. As the plaintiff is complicating the proceedings in execution by not applying for execution against both the defendants which he could legally do and thus in a simple manner get satisfaction of his decree (he could even have filed two separate applications one against the 1st defendant and the other against the 2nd defendant in any order he pleased so as to favour the one or the other as regards the claim for execution for the balance against him), we make no order as to the costs of this appeal.