[234] Stuart, C.J:— The application of the 7th September, 1871, prayed only for the partial execution of the decree and had not therefore the effect of keeping the decree alive for the other defendants. The same may be said of the application of the 13th August, 1874. The application of 1871 itself is before me, and it is difficult to understand how any contention to the contrary could have been expected to succeed. It recites previous applications by Ajudhia Singh in conjunction with other defendants, and also the judgment of the Privy Council, and it then proceeds:— “As the other persons do not join me in executing the decree, and in the decree the first Court's costs are separately entered in my name, while the costs of the Sudder Court, amounting to Rs. 969-12-0, are entered in my name and in those of the other persons collectively, who do not join in executing the decree, I apply for execution in respect of a 10-11th share, leaving out 10-11ths, the share of the said persons, and pray that it may be realized from the judgment-debtors.” The application of 1874 appears to have been in similar form; and terms more carefully and precisely restricted to the applicant's own share could scarcely have been used, and how, in the face of them, the Subordinate Judge could have issued his orders of the 8th and 28th September, 1871, is, to say the least of it, not very intelligible.
This decree is a joint decree, and no application for its partial execution could keep it alive for the defendants as a body; and Ajudhia Singh's applications of 1871 and 1874, having been confined to his own individual interest in it, in the very clear and unmistakeable terms to which I have adverted, could not be availed of so as to bring the present application within the three years. The order therefore recognizing and proceeding Upon it cannot stand. The appeal must be allowed, and with costs.
Pearson, J.:— It appears that the execution of the decree was stayed in pursuance of this Court's order, dated 23rd March 1867, [235] in consequence of an appeal lying having been lodged in the Privy Council against the decree of the late Sudder Court, dated 31st March, 1864. The appeal was disposed of by the Privy Council's decree, dated 11th February, 1870.
If it be assumed that the application made by Ajudhia Singh alone on the 7th September, 1871, for the execution of a small part of the decree was within time, under Art. 167, Sch. ii, Act IX of 1871, as having been presented within three years from the date of the Privy Council's, decree, it must, nevertheless, be held that, inasmuch as it prayed for the partial execution of a joint decree, it was not an application according to law and had not the effect of keeping the decree in force. The same remark applies to Ajudhia Singh's last application of 13th August, 1874.
The present application by Ajudhia Singh and others of the 20th May, 1875, is therefore beyond time. I would accordingly decree the appeal with costs, and reversing the lower Court's order disallow the application.