The facts are sufficiently set forth in the following judgment of the High Court (1) which was delivered by
Ainslie, J.:— In the suit brought by Bibee Budhun against Imdad Ali a decree was passed on the 8th of March 1861, which eventually was carried before Her Majesty in Council, and was disposed of finally in the year 1872. The final order modified the orders of the Courts in India, and in lieu of them, made an order in favour of the plaintiff, in respect of a portion of the claim, and dismissed her suit in respect of certain portion of the property included in the plaint. Proceedings had been taken in the mean-time for the execution of the decree, and the result was, that on this order of Her Majesty in Council the defendants were entitled, by way of restitution, to recover certain property with mesne profits.
The proper mode of dealing with this decree in execution would have been to ascertain the amounts respectively due to the two parties, to set off the smaller amount against the larger, and only to allow execution to proceed for the balance. But the case has been treated as two separate decrees to be separately executed; and we have before us now the decree of the original defendants against the original plaintiff.
Certain persons who were representatives of one of the original defendants, Imdad Ali, on the 24th April 1877, conveyed their interests in the decree to one Omur Kurreem, and on the 29th of August of the same year he applied to the Court to enter his name in the decree in the place of the names of those persons. Having done this, on the 27th May of the following year, he made a petition to the Court, in which he stated that the decree had been satisfied in full, and that the judgment-creditors had now no longer any claim against the judgment-debtors.
On the 5th of June following, an order was made, which was read to us by Baboo Sreenath Daas, as if it had been an order striking the case off the file altogether on the ground of the decree being satisfied. But it has been pointed out to us that the order was not in these terms, and that the Court only disposed of the case in respect of the particular creditor who made the application.
It appears to me that the learned pleader ought to have been more careful in examining the order before be made the statement to the Court, and that a great deal of the time which had been occupied in the discussion of the case might have been saved, if it had been pointed out at the outset that the order was a limited one.
It is contended that the effect of this order is to discharge the judgment-debtor entirely; but it seems to us perfectly clear that this cannot be so. It will be seen on reference to section 207 of the Code of 1859, which has been re-produced in section 231 of the Code of 1877, that one or more of several joint decree-holders, or his or their representatives, is, or are, entitled to proceed with the execution of a decree only with the special leave of the Court, and that even when such leave is granted, it is the duty of the Court to pass an order for the protection of the interests of the absent decree-holders. If, then, one of several joint decree-holders must obtain the leave of the Court before he can proceed with the execution of his decree, and if even then the Court is bound to protect the interests of absent decree-holders, it seems perfectly clear that no decree-holder can assume to himself the power of giving a discharge out of Court for the full amount of the decree; and that any judgment-debtor who chooses to pay over the amount due under the decree to a single decree-holder authorised by his co-decree-holders to give a discharge, does so at his own risk, and remains responsible to the decree-holders.
A case was cited from 3 Calcutta Law Reports, page 513, (Brojeswari Chowdhranee…Judgment-Deetor; v. Tripoora Soonderee Debi…Decree-Holder.,) in support of the contention of the appellant. It appears to us on the contrary that, when examined, this case is rather against than in support of it, and shows that no creditor can give a discharge in respect of any portion of a decree larger than his own share.
Then it is said that this application for execution is altogether barred by limitation, inasmuch as the last application is dated the 23rd of December 1876, and the next previous application was on the 16th of December 1872, that is, more than four years before.
To this there are two complete answers. One is, that under section 21, Act VI of 1874, the period for executing an order of Her Majesty in Council is twelve years from the date of such order. The second is, that it is evident from the proceedings taken that the application of December 1876 was really nothing more than an application to the Court to resume pending proceedings, at the stage at which they had been suspended. The application itself refers to a previously existing attachment, and it is admitted that no new attachment was made: but the Court went on and issued proclamation of sale on that pre-existing attachment, the order by which the previous application was removed from the file, but with a provision for the continuation of the attachment is not on the record before us; but it is quite evident from the materials that we have here, that there must have been such an order, and that the proceedings taken by the Court below were merely by way of continuance of a previously suspended proceedings. It may, no doubt, be true that the former order directed that the application should be taken off the file, but that part of the order must be read with the circumstances accompanying it; and when we find that there was a continuing attachment subsequently recognised by the Court as valid, the only conclusion we can arrive at is, that order was wrongly worded, and that it was in fact nothing more than an order to suspend proceedings sine die in consequence of appeals then pending.
The petitioners for execution have asked to be allowed to proceed with the execution of the decree, stating that their interest therein is two and a half annas, and that the interest which was conveyed to Omur Kurreem did not exceed three annas of the property in dispute, the total amount in suit being five and a half annas.
We think that the petitioners are entitled to proceed with the execution of their decree as for the whole decree after giving credit to the judgment-debtors for a part payment, amounting to a three-annas share of the whole.
The appeal must, therefore, be dismissed with costs.