1. We are invited by the petitioners to set aside an order made in execution of a decree for money obtained against them by the opposite party, on the 30th May 1899, under the Bengal Rent Act, (X of 1859). The decree-holder has made successive applications, for execution and realised various sums from time to time. In the application whereby the present proceedings were instituted on the 20th May 1911, the decree holder prayed for sale of the moveable properties of the judgment-debtors, for the arrest of their persons, and, if the decree was not satisfied by these means, for the sale of their immoveable properties. The judgment debtors took exception to the application on two grounds, first, that it was not maintainable under Section 109 of the Bengal Rent Act, 1859; and secondly, that the claim for interest was not sustainable. The Court below has overruled these objections and directed execution to proceed. In this Court, the objections mentioned have been re-iterated.
2. In support of the first objection, it has been urged, first, that no execution can be taken out against the immoveable properties of some of the judgment-debtors as the moveables belonging to the other judgment-debtors have not yet been sold; and, secondly, that execution cannot be sought against the immoveable properties, when, on the face of the application, the decree-holder asserts that there are moveables against which he wishes to proceed. In support of the second objection that the claim for interest is not sustainable, reference has been made to the terms of the decree, which, although referring to a petition of compromise whereon it is based, specifically allows the plaintiff a sum of Rs. 3,500 and the costs of the litigation.
3. In so far as the first branch of the first ground is concerned, it is plainly unsubstantial. Section 109 of the Bengal Rent Act,' 1859, provides that in the execution of any decree for the payment of money under the Act, not being money due as arrears of rent of a saleable under-tenure, if satisfaction of the judgment cannot be obtained by execution against the person or moveable property of the debtor within the district in which the suit was instituted, the judgment creditor may apply for execution against any immoveable property belonging to such debtor. This section, it will be observed, clearly contemplates the case of a single execution creditor and a single judgment-debtor; it does not specifically refer to the case of a joint and several decree against a number of judgment-debtors. In the present case, the decree under execution is a joint and several decree, and the decree-holder is at liberty to take out execution against any or as many of the judgment-debtors as ha may choose. He has apparently not taken out execution against two of the judgment-debtors and has proceeded against the remaining persons. It has been argued, on behalf of the petitioners, that inasmuch as no proceedings have been taken either against the persons or the moveable properties of these two judgment-debtors, the decree-holder is not entitled to apply for execution against the immoveable properties of the other judgment-debtors, although, so far as the latter are concerned, their moveable properties have bean already exhausted. In our opinion, this contention is ingenious but unsound. The section obviously contemplates that an application for execution against the immoveable property of a judgment debtor is not to be made till proceedings have been taken against his parson or moveable property. The requirements of the law are satisfied, if, in so far as an individual judgment-debtor is concerned, proceedings have been taken against his person or moveable property before an attempt is made to reach his immoveable property; he has no concern with his fellow judgment-debtors, and, he cannot indirectly restrict the right of the execution-creditor to proceed at his choice against one or some only of the entire body of judgment-debtors. The first branch of the first contention, therefore, cannot be sustained.
4. In so far as the second branch of the first ground is concerned, it has been argued that before execution can be applied for against immoveable property belonging to the judgment debtor, it must be shown that his moveable properties have been exhausted or that proceedings have been taken against his person; in other words, that an application for execution against immoveable property cannot at all be received and entertained so long as there is any moveable property against which execution may possibly be taken out. This contention is, in our opinion, too broadly formulated. Even if it be assumed that in the initial application for execution, a prayer for process against immoveable property cannot be coupled with a prayer for process against moveable property, the position cannot be maintained in respect of subsequent applications made after the moveable properties have been exhausted on a previous application and proceedings have been taken against immoveable properties. Once the decree-holder has reached the stage when he becomes entitled to proceed against immoveable property, upon a subsequent application for execution, he is free to proceed against immoveable properties, and it is not obligatory upon him to seek out and proceed against moveable properties, such for instance, as may have come into the possession of the judgment-debtor in the interval. Consequently, it is open to him to join in such subsequent application a prayer for process against moveable properties with a prayer for process against immoveable properties. In the case before us, it is not disputed, that, on a previous application for execution, proceedings were taken by the decree-holder against immoveable property, apparently without objection on the part of the judgment-debtors; it is, consequently, open to him to proceed against immoveable properties on the basis of the present application. We may add that, in this connection, it was suggested, though somewhat faintly, that an application against the person is a condition precedent to the maintenance of an application for execution against immoveable property. There is no substance, however, in this contention. The decree-holder is not anxious to arrest the judgment-debtors; he does not believe that the judgment-debt is likely to be satisfied by the arrest of the judgment debtors; nor, so far as we can gather, are the judgment-debtors themselves anxious to be arrested at the instance of the decree-holder. We must, consequently, hold that the application, as framed, is maintainable under Section 109. The view we take is supported by the observations of Sir Barnes Peacock, C.J., in the case of Deanutoollah v. Nawal Nazim; Sidhee Nazir Ali Khan 10 W.R. 341 : 1 B.L.R. 216, where the learned Chief Justice explained the object of Section 109. Section 109 shows clearly that, as a general rule, process of execution for a money decree under the Bengal Rent Act, 1859, is not to be levied in the first instance by attachment of immoveable property; the Legislature seems to have been anxious to guard against the sale of immoveable property in execution of decrees of the Revenue Courts under that Act, until the moveable property should have been first exhausted. The second branch of the first contention must, consequently, fail. Before we proceed to deal with. the second ground, we may refer briefly to two extreme contentions, one by the decree-holder, another by the judgment-debtor--neither of which can be supported It was argued on behalf of the decree-holder, that if an application has been made for execution against the immoveable property of the judgment debtor, it can be defeated by him only if he proves that he has moveable property within the district sufficient for the complete satisfaction of the judgment-debt. That is clearly not the true meaning of Section 109. As Sir Barnes Peacock puts it, the decree-holder is bound to proceed against the moveable property and exhaust it in the first instance, even though the proceeds may not be sufficient to satisfy the judgment-debt. It is only after the moveable property has been exhausted, that execution can be taken out against immoveable property for the recovery of the balance. The suggestion of the decree holder that he is free to ignore the moveable property, even upon the first application for execution, if its value is not sufficient for the full satisfaction of his decree, is wholly groundless. Equally unfounded is the argument put forward at one stage by the judgment-debtor that even in the case of successive applications for execution, it is incumbent on the decree-holder at every stage to seek out and proceed against the moveable properties of the judgment debtor before he can attach the immoveable properties. This argument is clearly unsustainable. If the contention were to prevail, the inference would follow that he is bound to proceed not only against moveable properties each time he applies but also against the person of the judgment-debtors on every successive application. This, however, he is not competent to do in view of the provisions of Section 94 of the Bengal Rent Recovery Act, 1859. Consequently, process against move-able property must be taken upon the first application for execution: and after the move-able property has been exhausted, the decree-holder is free to proceed against immoveable property upon succeeding applications for execution, notwithstanding that other moveable property may have come into the possession of the judgment debtor in the meantime.
5. In so far as the second ground is concerned, it has been pointed out that the decree was made by consent of parties and was based on a petition of compromise. The petition stated that the plaintiff was entitled to recover Rs. 3,500, that the sum would be paid in two equal instalments on the 15th October 1899 and the 10th February 1900, and that if the sum was not so paid, interest would run at the prescribed rate. When the decree, however, came to be drawn up, it was ordered that, in accordance with the solenamah, a decree be passed in favour of the plaintiff for Rs. 3,500 and for costs of the suit. The provision as to the payment of interest in the event of default was not incorporated in the decree. The reason possibly was that as the agreement for payment of interest was contingent upon future default on the part of the judgment-debtors, it was thought unnecessary to incorporate the terms in the decree. If so, it was clearly a mistake. The decree must be self-contained and must be executed as it stands. Ghrish Chunder v. Soshi Shikhareswar Roy 27 I.A. 110 : 27 C. 951; Chhoti Narain Singh v. Musammat Rameswar Koer 6 C.W.N. 796; Jai Gobind v. Patesari Narain A.W.N. (1907) 286 : 4 A.L.J. 765. There is no question that under the decree, as it stands, the decree-holder is not entitled to take out execution for interest. It will be open, however, to the decree-holder to consider whether he should apply to the Court, which made the decree, for amendment thereof, and to obtain a decree in accordance with the terms of the compromise. All that we now decide is that, under the decree as it stands, the claim for interest cannot be sustained. The second objection must, consequently, prevail.
6. The result is that the application is granted in part. The order of the Court below, in so far as it allows the decree-holder to realise interest, is set aside, but is confirmed in other respects. As there are no merits in the application and as the substantial ground has failed, while the ground whereupon the petitioners have succeeded in part is of an entirely technical character, they must pay the costs of the opposite party who have appeared on notice. We assess the hearing fee at five gold mohurs.