' This Execution Second Appeal by Mardana against Abdur Rehman and Mst. Phullan has been preferred in the following circumstances:-
2. A joint suit for possession through pre-emption, without specifying the inter-se shares, was brought by the parties to the present appeal in the Court of Civil Judge, Rawalpindi on 1-2-1965.
The same was decreed on payment of Rs,18,000 less Rs,6,000 which they had already deposited as 1/5th of the purchase price, before 11-2-1969. It had the usual term that the failure to do so shall entail the dismissal of the suit with costs. On 8-4-1969 Abdur Rehman and Mst. Phullan respondents moved application in the Court that Mardana was not depositing his share of Rs,4,500 so they be permitted to deposit; Mst. Phullan Rs,9,000 and Abdur Rehman Rs, 3,000, in all Rs,12,000. It was disposed of with the order "allowed on the petitioners' risk". Thereafter the respondents filed execution petition No,78 of 1967 on 24-4-1969 and prayed for issuance of a warrant of possession in their favour, specifying the share of Abdur Rehman as 1/4th and that of Mst. Phullan as 3/4th.
Mardana also presented execution petition on 7-7-1969 and at the same time filed reply to the execution application of the respondents. In it the pleas raised were that the decree was joint, so execution could be drawn in favour of all the decree-holders, the executing Court could not go beyond the decree; if at all the respondents had any cause of grievance they could file an independent civil suit in this behalf, the question they had raised was outside the scope of execution and thus beyond the jurisdiction of the Court (the executing Court). On merits it was asserted that 1/5th of the pre-emption price i.e, Rs,6,000 had been deposited by him and at that time it was agreed that at the time of the deposit of the pre-emption money/decree money the same would be paid by the respondents. Accordingly it was further pleaded that the application moved by the respondents (application dated 8-4-1969) was based on incorrect facts, actuated by deceit and mala fides. Following issues were settled by the executing Court:-
(1) Whether the petition is not competent in this Court ? OPR
(2) Whether Mardana had deposited 1/5th of the ostensible sale price, from his own pocket? If so, with what effect ? OPR (onus objected to).
3. Before the learned Civil Judge contention on behalf of the appellant was raised that the matter did not relate to the execution, discharge or satisfaction of the decree, thus the petition was not competent under section 47 of the Civil Procedure Code as it was not a question "between the parties to the suit" it being between joint decree holdeRs, Contention was tried to be fortified by the dictum laid down in Munshi Rai v. Rup Narain (103 I.C. 1927 page 724). It was tried to be met with the argument that the dispute clearly related to the execution, so between them the dispute clearly related to the execution, discharge and satisfaction of the decree, the same could be resolved by the Court and the petition was competent. The learned Civil Judge concluded that both the parties had moved applications for execution, so between them the dispute clearly related to the execution, discharge and satisfaction of the decree. The point canvassed that the two joint decree holders could not be said to be the parties to the suit was not accepted. The learned Civil Judge further built up the argument that in a pre-emption suit the title vests on the deposit of the pre- emption money, so the application for deposit of the same was a proceeding in the suit and the dispute having arisen with respect to the deposit, the proceedings were in the suit and not in execution. In his view before the deposit of the pre-emption money the appellant could not be regarded a decree holder, inasmuch as he had not deposited his share of the pre-emption money within the scope of Order 20, rule 14(i)(b) of the Code. On the other issue the finding recorded was that Mardana had only contributed Rs,1,500 towards the deposit of the 1/5th of the ostensible sale price. As a result of the findings the execution petition of the appellant was rejected being incompetent while that of the respondents was allowed.
4. On appeal the learned Addl. District Judge agreed with the learned lower Court that the dispute clearly related to the execution of the decree but in his opinion the question involved could not be said to be "between the parties to the suit." According to him the suit having been disposed of finally with the direction to deposit the pre-emption money by 11-4-1969 or otherwise to stand dismissed, concluded the matter between the parties, so the view of the Civil Judge that the application to deposit the pre-emption money before the target date (8-4-1969) was in the nature of proceedings in the suit, was not correct. He was of the opinion that the interest of the parties did not clash during the pendency of the suit, they were joint decree holders as held in Munshi Rai v.
Rup Narain (103 I.C. 1927 page 724). The final conclusion recorded was that the dispute being between the joint decree holders was not one under section 47 of the Code and thus the appeal was not competent. Further observation was also made that even if the appeal was competent the same must fail as the appellant had failed to establish that he had deposited the sum of Rs,6,000 as 1/5th of the sale price. The appeal was accordingly dismissed.
5. Even in the present appeal argument has been strenuously raised by the learned counsel for the appellant that the parties being joint decree holders, the decree was to be executed for the benefit of all as provided in Order 21 rule 15 of the Code, the inter-se dispute between the parties to the present appeal who were arrayed on one side in the suit (as plaintiffs) did not fall within the ambit of section 47, only an independent suit could be filed to resolve the controversy and that in any case the appellant had proved the payment of 1/5th of the preemption money. In view of the provisions of Order 21 rule 15 of the Code title vests in the decree holders only when the pre- emption money is finally deposited, but so far as the disposal of the suit is concerned the same is determined with the passing of the final decree which also specifies the eventuality in case of non- deposit i.e, of the dismissal of the suit. Thus the view of the learned first appellate Court is sound that the question raised could not be considered to be one "between the parties to the suit" and so was beyond the scope of section 47 of the Code. If any precedent is needed, Hanumantha Rao v.
Krishanamma (AIR 1924 Mad.518), Bagyalakshmi v. Bappu Aiyar (AIR 1946 Mad. 90), Bans Raj Singh v. Krishna Chandra (AIR 1981 All. 280), MD Salamatullah v. Murlidhar (AIR 1936 Oudh 277) and Sansar Chand v. Sham Lal (AIR 1957 Punjab 307) would suffice.
6. Order 21 rule 15 of the Code lays down that whese a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all.
Thus execution in a joint decree can be drawn either by one or some or by all the decree holders but for the benefit of all. There can be exceptions to this general rule and these have been brought out in Anrup Misir v. Ram Harakh (AIR 1929 All 953) which came up for consideration in Mst. Jannat v. Sharu (PLD 1983 Lah. 302). The executing Court cannot go behind the decree but as is the tenor of the above-mentioned two reports, if a particular decree holder has not contributed, or refused to contribute towards the decree money or has withdrawn while the others have deposited the same to the notice of the former, then title would pass to the latter who would be entitled to draw the execution and the former would be left out.
7. However, contention of the learned counsel for the appellant that the dispute between the parties to the present appeal not being "between the parties to the suit" and thus being outside the scope of section 47 of the Code, as held by the two Courts below needs further elaboration. In this very connection argument has been raised that in this regard a separate suit should have been filed. Section 47 ibid only speaks that all questions relating to execution, discharge or satisfaction of the decree must be decided by the executing Court but no inference therefrom can be drawn that if any question between the plaintiffs/co-defendants/co-decree holders/joint decree holders is raised which otherwise is within the pecuniary and territorial jurisdiction of the Court, cannot be decided by the Court. It was observed in Sansar Chand v. Sham Lal (AIR 1957 Punjab 307) referred to above that a liberal construction has always to be placed on the language of section 47 so as to allow all execution matters to be disposed of as cheaply and as speedily as possible. Though the observation has been made in a different context, I must however observe that with the passage of time the law must adopt progressive course unless the same is expressly or impliedly prohibited.
There being rush of litigation in Courts it is most desirable that all questions arising during execution proceedings not only "between the parties to the suit" but also between the parties arrayed on the same side (either as co-plaintiffs or as co-defendants), must be decided by the same Court before which they crop up, unless, of course such a course is expressly or impliedly prohibited or the question involved is beyond jurisdiction, territorial or otherwise, of the Court concerned. It is not the case of any of the parties to the present appeal that the executing Court had not the jurisdiction to decide the matter. The determination of the question also does not seem to be barred either impliedly or expressly by any provision of law nor any has been referred to at the bar. The question raised between the parties to the present appeal, to avoid the multiplicity of proceedings, could therefore be decided by the executing Court, though it fell outside the ambit of section 47 of the Code.
8. The two Courts below found that the amount of Rs,6,000 as 1/5th of the ostensible sale price had not been deposited by the appellant. The finding is partly based on misreading of the pleadings and the evidence of the parties. According to the application of the respondents themselves (application dated 8-4-1%9) the appellant had contributed Rs,1,500 to 1/5th of the pre-emption money. Mst. Phullan in the witness box (AW.1) also stated the same fact in examination-in-chief. To the same effect is the statement of Abdur Rehman (AW.2). In terms of the decree the 1/5th of the pre-emption money was to be considered as deposit towards the pre-emption money/decree money, thus the conclusion is irresistible on the admission of the respondents themselves that the appellant had contributed Rs,1,500 towards it. Finding accordingly.
9. The upshot is that the appeal partly succeeds. The appellant having contributed Rs,1,500 towards the total pre-emption money of Rs,18,000 was joint decree holder with the respondents to the proportionate share within the meaning of Order 21 rule 15 and thus entitled thereto through execution. The orders of the two learned Courts below stand modified accordingly. The execution petition filed by him shall be considered as pending. The learned executing Court is directed to deliver joint possession to the extent of his proportionate share in accordance with law. Parties are left to bear their own costs.