Jwala Prasad, J.:— Miscellaneous Appeals Nos. 216 and 229 of 1918 are presented against the orders of the Subordinate Judge, dated 11th May, 1918 and 6th July, 1918 respectively. By these orders the Subordinate Judge disallowed the several objections of the judgment-debtor, Mr. A.J Meik, Manager of Barabhum Encumbered Estate, Manbhum, to the execution of a joint decree held by the respondent, the Midnapur Zemindary Co. Ltd. and one Mr. Mathesa against the appellant. The facts shortly stated are as follows.
2. The Raja of Barabhum, Sri Ramkanai Singh Deo, brought a Suit No. 89 of 1906, against the respondent, the Midnapur Zemindary Company, for setting aside a Patni. The Subordinate Judge dismissed the suit and awarded costs to defendants the Midnapur Zemindar Company and Mr. Mathesa. The Raja preferred an Appeal No. 79 of 1908, to the Calcutta High Court which was also dismissed on 28th April, 1910 with costs. During the pendency of the appeal in the High Court, the Raja, on 17th December, 1909, obtained a decree against the Midnapur Zemindary Company for a large sum of money due as arrears of Patni rent. The Deputy Commissioner of Manbhum, as Manager of the Encumbered Estate of the Raja, obtained leave to appeal to His Majesty in Council against the decree of the Calcutta High Court, dated 28th April, 1910, in favour of the Midnapur Zemindary Company, and on 7th February, 1911 hypothecated the said rent decree of 17th December, 1909 in favour of the Raja as security for the respondent's costs of appeal to the Privy Council. An appeal was preferred. In February 1915, the Privy Council dismissed the appeal awarding costs to the defendants, the Midnapur Zemindary Company and Mr. Mathesa. Out of the two decree-holders the Midnapur Zemindary Company and Mr. Mathesa, only the former applied for execution of the entire decree to the Subordinate Judge on 23rd June, 1917. The execution comprises three decrees for costs:
(1) For costs awarded by the Subordinate Judge in Suit No. 89, Rs. 1,701-9-0 which with interest and costs of the previous executions amounted to Rupees 2,686-1-6. (2) For costs awarded by the High Court in Appeal No. 79, Rupees 2,008-6-0, which with interest and costs of the previous executions amounted to Rs. 2,873-0-3. (3) For costs awarded by His Majesty in Council in Appeal No. 62, Rs. 5,814-12-0.
3. The total sum covered by the execution is Rs. 11,373-13-9. The decree-holder applied for recovery of the money by attachment and sale of the judgment-debtor's zumindari right in Barabhum Estate Pargana, Tauzi No. 1, District Manbhum. The Deputy Commissioner, as manager of the estate of the judgment-debtor under the Chota Nagpur Encumbered Estates Act, filed a petition objecting to the execution of the decree on 15th August, 1917. This was disposed of against the judgment-debtor by the Subordinate Judge on 11th May, 1918, and the execution was ordered to proceed. Appeal No. 216 is against this order of the Subordinate Judge. On 29th June, 1918, the judgment-debtor filed further objections which were disposed of by the order of the Court on 6th July, 1918. Appeal No. 229 is by the judgment-debtor against this order of the Subordinate Judge. These two appeals may be considered at one and the same time and may be disposed of by one judgment as they relate to the execution of the same decree, and the objections of the judgment-debtor are more or less overlapping.
4. Mr. Fakhrudin, appearing on behalf of the appellant, has strenuously contended that the petition for the execution of the decree was invalid inasmuch as it contravened the provisions of O. 21, R. 15. The petition for the execution of the decree was taken out by one of the two joint decree-holders in respect of the whole decree. Under R. 15 of the said order this is permissible if the execution is for the benefit of all the decree-holders. The petition for execution of the decree, dated 23rd June, 1917, does not state that the execution was for the benefit of all the decree-holders. The name of the other decree-holder—Mr. Mathesa—is not even mentioned in the column prescribed for stating the names of the parties nor anywhere else in the application. It is therefore dear that the execution was taken out by the Midnapur Zemindars Co. Ltd., one of the decree-holders only, in respect of the entire decree solely on its own behalf. A joint decree cannot be executed by one of the several joint decree-holders in respect of what the applicant considers his share in the decree. Much less can it be executed by one of the decree-holders in respect of the entire decree unless it is on behalf of all the decree-holders or for the benefit of them all. Even if the application for execution of the decree by one of the decree-holders be on behalf of or for the benefit of them all it is for the Court to allow, for sufficient cause, the execution of the decree on such application, and in case the Court does allow the application and the decree to be so executed the Court is required to make such order.
“as it deems necessary for protecting the interests of the persons who have not joined in the application.”
5. This is imperative in order to make an execution of a decree by one of the joint decree-holders valid and competent, as the word “shall” in Cl. 2 indicates. In the present case there is no application for the execution of the joint decree for the benefit of all the joint decree-holders; nor has the decree been allowed to be executed by one of the decree-holders, nor has the Court passed any order for protecting the interest of the other decree-holder who has not joined in the application. The execution therefore is invalid and incompetent. The Court below disposed of this objection by its order, dated 11th May, 1918, by simply stating that “O. 21, R. 15 of the CPC enables one of the joint decree-holders to execute the whole decree:” vide O. 20, dated 11th May, 1918. The lower Court has overlooked the provisions of the said rule. On behalf of the respondent it has been suggested that the application may be allowed to be amended. R. 17, O. 21, while it empowers the Court to allow a defect in the requirements of Rr. 11 to 14 to be amended, does not include R. 15 in it and hence the application cannot be allowed to be amended. There appears to be good reason for the said distinction.
6. The defects in the requirements under Rr. 11 to 14 are only of formal character, whereas R. 15 goes to the root of the execution of the decree itself. The contention of the judgment-debtor must therefore prevail and it must be held that there was no valid application for execution of the decree before the lower appellate Court and the same must therefore be disallowed.
7. The objection as to the execution being invalid under O. 21, R. 15, has been taken in Appeal No. 216 which relates to the order of the Court of 11th May, 1918, and not in Appeal No. 229 which relates to the order of the Court of 6th July, 1918. But inasmuch as the petition for execution of the decree was in itself invalid, the orders of the Court of 11th May directing execution to proceed and of 6th July directing notice to issue under O. 21, R. 66, are illegal and must therefore be set aside.
8. It is needless to consider the other points raised in both these appeals and we therefore abstain from giving any opinion on those points. The result is that the appeals are allowed with costs. We assess the hearing fee at five gold mohurs for both the appeals.
9. Atkinson, J.:— I agree.
V.S/R.K
10. Appeal allowed.