Kapur, J.:— On the 25th of August 1938 seven persons Mt. Nur Jahan, Said-ud-Din Niaz Ahmad, Fayaz-ud-Din, Basbir-ud-Din, Mt. Sitara Begum and Mt. Fatima obtained a final decree in a suit for partition of property and for mesne profits and costs against one Mehr Elahi and others. Sri Narain had a decree against Niaz Ahmad aforesaid for Rs. 375 and against Said-ud-Din for Rs. 30. In execution of his decree Sri Narain on the 13th of May 1939 purchased the share of Niaz Ahmad A and on the 23rd of June 1939 be purchased for Rs. 41 the shares of Said-ud-Din. In July 1939 Said-ud-Din applied for setting aside of this sale on the ground of material irregularity and made another application under section 151, Civil Procedure Code, alleging fraud and although the sale was ordered to be set aside by the Court of first instance on various grounds but on appeal this order was reversed.

2. On the 29th of November 1939 Ahsan Elahi purported to purchase the interest of all the decree-holders in the decree as far as it related to mesne profits and costs. In this assignment deed it was recited that Niaz Ahmad had sold his rights under the decree to the renaming decree-holders.

3. Ahsan Elahi applied to the Court for substitution in place of the decree-holders and to execute the decree against Mehr Elahi and others but this application was dismissed as it was held that he could not be a representative of all the decree-holders, Mt. Nur Jahah and others, after the sale in favour of Sri Narain. Some other proceedings took place with which we are not concerned in this appeal but which may be relevant in the connected Letters Patent appeal. Ahsan Elahi again applied under Order 21, rule 16, Civil Procedure Code, but some of the judgment-debtors objected that he could not proceed with the execution. This matter was tried in the Court of Mr. Tara Chand Aggarwal who held that as the transfer was of a portion of a decree and that also relating to the share of some of the decree-holders, Ahsan Elabi had do locus standi to apply for execution under Order 21, rule 16 of the “Civil Procedure Code. Against this decree Ahsan Elahi appealed to the Lahore High Court. When the matter came up before Mr. Justice S.A Rahman of that Court it was discovered that one of the respondents Mt. Sahebzadi had died in about June 1945 and an application for bringing on record her legal representatives was filed on the 8th of October 1945. From an affidavit which had been filed in that Court it appeared that the appellant had come to knew of death of Mt. Sahebzadi at least on the 25th of September 1945 and although the papers had been received for filing in Court by the learned counsel, appearing in the case, on the 4th of October 1945 they were not filed till the 8th of October 1945. The case was heard by Mr. Justice S.A Rahman on the 2nd of January 1947 but was adjourned for a month to allow Ahsan Elahi to put in an affidavit which be did on the 22nd of January 1947. The learned Judge held that no sufficient cause had, been shown and, therefore, the appeal had abated. On the question whether it had abated partially or as a whole the learned Judge held that a decree like this was to be “regarded as joint and several against the judgment-debtors” and as one of them had died and his legal representatives had not been impleaded within time the decree could not be executed against the rest. Relying on certain rulings he held that the appeal abated as a whole. He also held that the decree was one for mesne profits and costs and was not severable into separate shares of the judgment-debtors and on this ground he dismissed the appeal. Against this judgment a Letters Patent appear was filed in the Lahore Court on the and of March 1947 and along with it an application was made under Order XLI, rule 27, Civil Procedure Code, in which it was stated that Mt. Sahebzadi lived in Mohallah Shahganj whereas the appellant was a resident of Ballimaran, that Mt. Sahebzadi was a purdah-nashin woman and that on further enquiry the appellant had discovered that she died on the 5th of August 1945 and had obtained a death certificate to that effect and be wanted this, death certificate to be taken into consideration as additional evidence. I have not been able to discover on the record any affidavit supporting this application but even if there was, in my opinion there is no ground for taking this additional evidence into consideration.

4. I may state here that I am very doubtful if additional evidence can be taken at the stage of the Letters Patent appeal because in my opinion this appeal is in the nature of a re-hearing in the same Court when all that has to be seen is whether the judgment of the learned Single judge on the facts and law as presented to him was correct and whether the learned Judge had taken into account any irrelevant factor or failed to take into account any material one or whether he had applied any erroeneous principle Page: 103of law. Even if the Letters Patent Bench had the power to admit such additional evidence, I do not think that the present case falls within the rule laid down by their Lordships of the Privy Council in Parsotim Thakur v. Lal Mohar Thakur1. In my opinion, in order to determine the point in dispute it may be taken that Sahebzadi had died in June 1945 and that no application for bringing her legal representatives on the record had been made within the time allowed by law.

5. The question to be determined in this Letters Patent Appeal, is whether the learned Judge was right in holding that the appeal had abated as a whole. The first question which has to be decided is whether the provisions of Order 22, rules 34 and 8, apply to appeals against orders passed in execution. Rule 12 of Order 22 runs as follows:—

“Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order”.

6. But rule 11 applies the provisions of this Order to appeals. It will be noticed that section 50, C.P.C applies to legal representatives in the case of execution proceedings. The section allows a decree-holder to apply to the Court which passed the decree to execute the same against the legal representatives of the deceased but this section does not make any specific mention of appeals against orders in execution. To suits and appeals against suits sections 141 and 167 of the Civil Procedure Code apply. The Part dealing with appeals is Part VII and the Orders dealing with appeals are Orders 41, 42, 43, 44 and 45 and no distinction is made in these Orders between appeals against decrees passed in suits and appeals against orders passed in execution and there is nothing to show that the legislature wanted to make any distinction between appeals in these two cases. A reference to the above provisions shows that rules 3, 4 and 5 are applicable to appeals against orders in execution. One other factor which, in my opinion, supports this view of mine is that whereas there can be successive applications for execution, there cap not be successive appeals against an order in execution which once passed and not challenged within the time allowed under the Limitation Act of comes final and other consequences then follow.

7. At one time Patna in Hakim Syed Muhammad Taki v. Rai Fateh Bahadur Singh*2 and Lahore in Mir Khan v. Sharfu A.I.R 1923 Lah. 560 had taken the view that rules 3, 4 and 8 do not apply to appeals also but other Courts have taken a different view and even Lahore has subsequently adopted this different view in Cheda Lal v. Aijaz Hussain I.L.R 1937 Lab. 80. The other Courts are now of the opinion that these rules do not apply to appeals in execution: Madras in Sundayee Ammal v. Kiishnan Chttti5, Subbavarapu Gangunaidu v. Murru Muttenna A.I.R 1934 Mad. 664 and The Rajah of Kalahasti v. P. Jagannadha Rayanimgar I.L.R 55 Mad. 1006, Chhanga Mal v. Ram Dularey Lal8, Nagpur in Shree Madhaorao Narayanrao Ghatate v. Page: 104Baliram Narayan Gadkari A.I.R 1938 Nag. 502, Lucknow in Hari Saran Das v. Har Kishan Das A.I.R 1934 Oudh. 337 and B. Jagdish Bahadur v. Mahadeo Parsad A.I.R 1941 Oudh. 16 and Sind in Mt. Aman Khalun v. Abdul Rasool Abdullah A.I.R 1938 Sind. 239. And lastly a Full Bench of the Lahore High Court in Ajudhia Pershad Ram Pershad v. Sham Sundar A.I.R 1947 Lah. 13 have held that appeals from orders in execution proceedings are not proceedings in execution within the meaning of Order 22 rule 12 and are, therefore, not excluded from the rules relating to abatement contained in that Order. It may, therefore, be taken to be settled law that execution appeals are governed by the same rules with regard to abatement as appeals from decrees and orders in suits. I would, therefore, hold that to this appeal also the provisions of rules 3 and 4 of Order 22 apply.

8. As luck would have it, in the present Letters Patent appeal also one of the judgment-debtors Mt. Kahir-ul-Nisa died on the 20th of August 1947. The appellant on the 1st of November 1947 sent an application by post to the Registrar saying that this woman had died and applying that her legal representatives be brought on the record. This application is in Urdu not being the language of this Court an application in that language is, in my opinion, not a proper application. I am also of the opinion that all applications have to be filed either by the applicant in person or by his duly authorised agent or by an advocate of this Court and they cannot be sent directly, to the Registrar by post. Suits can be instituted under Order 4, rule 1 of the Civil Procedure Code by presenting a plaint to the Court or such officer as it appoints and under section 141 the procedure provided in the Code in regard to suits is followed as far as can be made applicable in all proceedings in any Court of civil jurisdiction. An application under Order 22, rule 4 is a proceeding in a Court of civil jurisdiction and, therefore, in my opinion, an application would, haw to be presented in this Court in the manner prescribed in the Code of Civil Procedure for plaints. In the Rules and Orders of the High Court, Vol. V, Chapter I-C, rule 8 it is provided that such applications, can be presented to the Deputy Register. “To present” in law means to place a thing in or give to and in Stroud's Judicial Dictionary it means either showing or delivering over. In its ordinary dictionary meaning it means ‘to lay or to put before a person for acceptance’. An application cannot be said to have been presented if a postal peon brings such an application and delivers it to the office as the law requires acting to be done by a person authorised under Order 8. Bringing of an application by a postal peon is not, in my opinion, proper presentation. This being the view that I take of the matter, in my opinion the Registrar rightly returned this application on the 4th of November 1947 and rightly printed out that no application could be received by post. This application was then presented on the 24th of November 1947 and the limitation had expired on the 18th of November 1947.

9. An argument has been raised by the learned counsel for the respondents that the Letters Patent appeal itself had abated as all the legal representatives of the judgment-debtors Mt. Khair-ul-Nisa had not been Page: 105brought on the record within the time prescribed some of the legal representatives were already on the record. In support of the contention, that even if there are already some of the legal representatives on the record and no application had been made in time to bring the other representatives on the record, the appeal abates, Chuni Lal-Tulsi Ram v. Amin Chand14 was quoted by the learned Counsel for the respondents. Reliance was also placed by him on two Patna cases Lilo Sonar v. Jhagru Sahu*15 and Basist Narayan Singh v. Modnath Das*16. In the Lahore case a suit had been brought against a father and ton who were partners of a Hindu firm but they were shown as mere individuals who it was alleged had acted as agents of the plaintiff firm. Their plea that they were not mere agents, but partners, of plaintiff was accepted and resulted in a final decree being granted in their favour against plaintiff and during the pendency of the appeal by plaintiff the father died and no application was made to bring his legal representatives on the record. This appeal was held to have abated in spite of the fact that one of the sons was already on the record and it was said that it was necessary to bring all the representatives of the deceased upon the record as one son did not represent the whole interest of the deceased. In reply to this argument it was submitted by the learned advocate for the applicant that this view of the law was not correct and for this purpose he relied on a judgment of a learned Single Judge of the Lahore High Court, Dalip Singh, J., reported in Hakam Ali v. Shiv Narain A.I.R 1933 Lah. 765. It was observed by that, learned Judge:—

“The question then arises whether all the legal representatives of a deceased person must be brought on the record or the suit must be held not to abate so long as one of the legal representatives, has been brought on the record. Now in the case when an application has been made, the point is free from difficulty, because the section, only says that abatement tales place where there is no application, but in this case there is no application but by a fiction of law the necessity of an application is dispensed with because one of the legal representatives is already on the record “though in a different capacity.” The learned Judge went on to say that in the circumstances of that case be would be prepared to extend time. Although this point does arise in this Letters Patent appeal but, in my opinion, it is not necessary to finally decide the point because in my opinion, on the merits also the appeal fails as I will show presently. But should it have been necessary to decide this point my opinion is that if no application is made within the time allowed under the Limitation Act there would be an abatement partially or of the whole case as the circumstances may prescribe. The law in my opinion, has been correctly stated by Mull a in his Civil Procedure Code at page 935 where it is stated:—

“The Lahore High Court has held that rule 4 is sufficiently complied with if all the legal representatives known after diligent inquiry are joined. But in another case where only two but of three heirs of a deceased respondent were brought on the record, the same Court held that the appeal abated as the whole estate was not represented.”

10. But as I have said before, this is a matter on which I need not express any final opinion.

11. Coming to the merits of the case, my opinion is that Mr. Justice S.A Rahman came to a correct conclusion in holding that the appeal had abated as a whole. Before going further I may dispose of an argument which was addressed to us that the learned Judge had not exercised his discretion in a proper judicial manner. I do not find any principle of law which was wrongly applied or missed and in this Letters Patent appeal I am not prepared to differ from the learned Judge even if I could. In my opinion, the learned Judge exercised his discretion Correctly as he had taken right facts into account. Egerton v. Egerton (1949) 2 A.E.R 242.

12. The appeal before Mr. Justice S.A Rahman was against an order passed in execution in regard to a decree for mesne profits and costs and it has been held that in an action for mesne profits although it is open to the plaintiff to proceed against one or some or all of the co-trespassers at his own choice, once the matter goes up in appeal it is the entirety of the decree which has to be challenged in appeal and so long as the decree against some remains final and not subject to an appeal even though it is nor satisfied but is capable of execution the plaintiff cannot proceed in the appeal against others. This is the law as I find laid down, in Kamala Prosad Sukul v. Kishori Mohan Pramanik19. Another argument which supports the judgment of the learned Judge is that if inconsistent orders are now obtained in so far as the decree becomes executable against some and in executable against others the right of contribution which the judgment-debtors have against each other will no longer remain in existence. In Suttya Nundo Ghosal v. Surop Chunder Doss20 it was field that the plaintiff was not at liberty, if he had recovered a decree against several persons as joint wrongdoers, to single out one or more of those persons as defendants in a suit for wasilat, but must bring a suit against the parties who kept him out of possession; and there also one of the seasons given was, that such a procedure would affect the right of the surviving defendants as regards their claim for contribution. In Maharajadhiroj Sir Rameshwer Singh Bahadur v. Ram Charan Sahu21 a similar proposition was laid down and one of the reasons why in an appeal against a decree for mesne profits a total abatement in similar circumstances was held to have taken place was that if abatement was held to be partial it would affect the right of the surviving defendants as regards their claim for contribution against the other wrong-doers. In Mt. Aman Khatun v. Abdul Rasool Abdullah A.I.R 1938 Sind. 239 where there was an appeal against an order in execution, the original decree having been passed in a suit for partition and mesne profits and one of the respondents had died during the pendency of the appeal against an order passed in execution, the appeal was held to abate as a whole if his legal representatives were not brought on record within the prescribed period of limitation. In English law the general rule is thus stated by Clerk and Lindsell on Torts p. 263 (10th edition), “that where there is a joint cause of action against two or more persons, a discharge as against one of them operates as a discharge against all. If accord be made with one joint tortfeasor and satisfaction accepted or if he be released all others are discharged.” (Thurman v. Wild). (1840) 11 Ad. and E. 453

13. In Duck v. Mayeu (1892) 2 Q.B 511 at p. 513 at page 513 it was observed by A.L Smith L.J,:

“It is, we think clear law that a release granted to one joint tortfeasor or the other joint-debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released.”

14. Relying on these authorities I am of opinion that there was a total abatement of the whole appeal.

15. The learned advocate for the respondents drew our attention to a Full Bench decision of the Lahore High Court in Nanak v. Ahmad Ali A.I.R 1946 Lah. 399 where the facts were that two persons N and K jointly purchased a house from one Gumani. Ahmad Ali plaintiff who was in possession of the house successfully brought a suit for declaration of his title to the house. N and K appealed from the decree and N died but his legal representatives were not brought on record during the period prescribed for limitation and the appeal abated as far as N was concerned. The question was we her the abatement of appeal of N resulted in the abatement of the whole appeal and it was held that it did not on the ground that the only effect would be that declaration granted to the plaintiff against K would cease to operate but that against N would stand. The plaintiff could have initially instituted two separate salts against N and K and inasmuch as the suit could, in the first instance, have been brought against K without impleading N, there was no legal bar to the competency of an appeal by K alone merely because the plaintiff chose to bring one suit against N and K. It was also said that N and K could not be regarded as holding the house or claiming title thereto as joint tenants in the sense in which the expression is understood in English Law. That is a clear distinction between that case and the present one where the decree which was being executed was one against joint tortfeasors. It was held in Thurman v. Wild A.I.R 1938 Sind. 239 that an accord and satisfaction by one wrong-deer for the whole injury done discharges all the wrongdoers. A release, therefore, given of the whole cause of action to one discharges the others. It was also submitted by the learned advocate for the appellant that Kamala Prosad Sukul v. Kishori Mohan19 and Mr. Aman Khatun v. Abdul Rasool Abdullah A.I.R 1938 Sind. 239 were not cases in execution. That may be so, but the principle laid down in those cases is clearly applicable to the case now before me and I must respectfully follow, the rule laid down in those cases. In the result, therefore, this appeal fails and is dismissed with costs throughout.

16. Khosla, J.:— I agree.

17. Appeal dismissed.