1. This is an appeal by a decree-holder from an order passed by the Subordinate Judge of Khulna dismissing an application for execution of a decree for costs. The question which arises for consideration in the appeal is one of some nicety. The decree was passed in a suit which the decree-holder as plaintiff had instituted for recovery of possession of four items of property and also for certain other reliefs. There was a very large number of defendants in the suit. As regards property No. 1, the suit was dismissed. One Jogendra Nath Shome, who was defendant l in the suit, claimed 8 annas share in properties Nos. 2 and 3 and the other 8 annas share in those properties was claimed by defendants 2 to 6. In property No. 4, the said defendant 1 claimed to be owner of the landlord's interest and in that property the tenants' interests were claimed by certain persons amongst whom were defendants 22 and 22-Ka. The plaintiff succeeded in obtaining a decree for possession in respect of properties Nos. 2, 3 and 4, and also certain other reliefs amongst which was a relief in the shape of a decree for account as against defendant 1, Jogendra. Two appeals were thereupon preferred to this Court from that decree; Appeal No. 71 of 1931 by defendant 1 and Appeal No. 43 of 1931 by defendants 2 to 6.
2. In the former appeal there was a compromise arrived at as between the plaintiff and defendant 1, and that appeal was disposed of on 12th April 1933 in accordance with the terms of the said compromise. In that appeal the other defendants had been made respondents but they were not parties to the compromise and the appeal was dismissed in so far as it was against them. The latter appeal remained pending and after running its usual course was eventually dismissed on a date with which we are not concerned here During the pendency of the latter appeal, an application for execution which has given rise to the appeal now before us was filed by the plaintiff as decree-holder, and it was only for execution of the portion of the decree of the Subordinate Judge by which costs were awarded to the plaintiff as against defendants 1, 2 to 6 and 22 and 22-ka jointly. The Subordinate Judge has held that by reason of the compromise which the plaintiff had entered into with defendant 1, the plaintiff had absolved and released that defendant from all liability in respect of costs as provided for by the decree under execution and that, therefore, the present application for execution in respect of the said costs, which had been awarded to the plaintiff as against the defendants jointly including defendant 1, could not be allowed to be proceeded with as against the defendants other than defendant 1. It is from this order that the present appeal has been taken.
3. One of the contentions that have been urged before us on behalf of the decree-holder is that as a matter of fact under the compromise which was effected as between the plaintiff and defendant 1 and which was given effect to by the decree of this Court in Appeal No. 71 of 1931, there was no release granted to defendant 1 or satisfaction recorded as between the decree.holder and the said defendant in respect of the decree for costs. In this connexion, reliance has been placed upon the different clauses of para. 5 of the petition of compromise which set out the terms of the said compromise. We are of opinion that this contention is not well founded and if the terms contained in the several clauses of that paragraph have to be given effect to simultaneously it must be held that so far as defendant 1 is concerned, it was not the intention of any of the contracting parties that that defendant should have any further liability under the order for costs which had been made in the decree of the trial Court which is the decree now under execution. Whatever may have been said in Clause (a) of that paragraph, it is perfectly clear to our mind upon a reading of Clause (g) of the paragraph that it was the intention of the parties that the claim which the plaintiff has as against defendant 1 under the order for costs that had been made in the decree was to be treated as satisfied.
4. In Clause (g) there is a specific reference to the fact that defendant 1 had spent a large sum of money over the litigation and it was expressly stated that in consideration of that fact as also for certain other considerations a sum of Rs. 1,600 was being paid by the plaintiff to the said defendant. We are clearly of opinion that the decree in so far as it was a decree as against defendant 1 was not intended to be kept alive for the purpose of execution even after the compromise effected as between that defendant and the plaintiff.
5. The question, therefore, that has to be considered is whether in circumstances such as these when a decree for costs has been passed in favour of the plaintiff and against the defendants jointly, the plaintiff by adopting this particular course, namely, having absolved defendant 1 from liability in respect of the costs can be permitted to proceed as against the parties other than defendant 1 for realizing the said costs. On this question, one matter that has to be considered at the very outset is whether by the compromise it was intended that the entire decree for costs as against all the defendants should be treated as satisfied. Well, on this point whatever may have been the intention of the parties it is not possible for us to hold that upon the language that was used in the petition it could be held that such was the intention of the parties; and indeed it seems to us somewhat improbable that such could have been the intention seeing that the other appeal, viz. Appeal No. 43 of 1931 which had been preferred by some of the other defendants, remained pending in this Court at the time. Now the whole question, therefore, is whether as a matter of law it can be said that the decree became incapable of further execution in so far as it was against the other defendants and, if not, then to what extent was it executable as against them.
6. A very learned argument has been addressed to us by the learned advocates who have appeared on behalf of the parties in this case, but it seems to us that the decision that we will have to give will depend entirely upon the consideration of the peculiar equities of the particular case now before us. Here, it was a case in which a number of defendants in their character as tort-feasors had wrongfully entered into possession of the property which belonged to the plaintiff, and it was to recover possession of such properties that the plaintiff instituted the suit. Different interests were claimed by the different sets of defendants in the properties that were the subject-matter of the suit. Appropriate decree was made as against the different sets of defendants in respect of the properties and, one joint order for costs was made in favour of the successful plaintiff payable by the defendants jointly.
7. In those circumstances, if the plaintiff treats as satisfied his claim for the costs, in so far as they could be realized from one of the defendants, then ordinarily and in the absence of any other facts which may be considered to be relevant, the principle to be followed is that the other defendants who are also liable under the decree jointly with the one in respect of whom the claim had been treated as satisfied, may plead either that the entire claim has been satisfied or that the plaintiff decree holder having released one of the joint defendants from his liability for the costs is entitled only to proceed against them for realization of their share of the costs pro tanto. The first of these pleas, as we have already stated, cannot succeed because we are not able to put upon the terms of the compromise the interpretation that by it the parties intended that the entire order for costs was to be treated as satisfied. The result, therefore, must be that the decree-holder would be entitled to proceed as against the other defendants for realization of a proportionate share of the costs.
8. The next question, therefore, is on what principle has the proportion to be calculated. There is a decision of this Court in Bhawani Koer v. Darsan Singh (1911) 11 I C 450, in which it has been held that the costs should be treated as distributed in equal proportion amongst all the defendants. The rule laid down in that case, however, in our opinion, should not be treated as an inflexible rule but a rule which with propriety may be applied to a case in which the facts are similar to those as in the case in which that rule was laid down. So far as the present case is concerned, the matter will have to be decided upon considerations of equitable principles. We find that defendant 1 claimed an 8 annas share in the properties Nos. 2 and 3, and the other 8 annas share in those properties was claimed by defendants 2 to 6, and that while defendant 1 claimed the landlord's interest in property No. 4 the tenants' interest in that property was claimed by defendants 22 and 22 Ka. By the compromise the plaintiff must be regarded as having given up his claim for costs which is proportionate at least to the 8 annas share in properties Nos 2 and 3 and the landlord's interest in property No. 4, if not to the tenants' interest in that property as well, a question which we are not called upon here to decide. In such circumstances, we think it would be quite in consonance with principles of equity to hold that the plaintiff as decree-holder will be able to realise by execution as against defendants 2 to 6 only a quarter share and no more of the costs awarded to him under the decree of the trial Court. The appeal, in our opinion, should succeed to the extent indicated above and we order accordingly. The appellant will be entitled to his costs of this Court, hearing-fee being assessed at three gold mohurs.