- (1.) THIS appeal arises out of execution proceedings.
(2.) IT would appear that a mortgage decree was passed in favour of three brothers, namely, Ram sewak, Ram Sudhist and Ram Naresh against one Sewak, minor, who is respondent No. 1 in this appeal. After the said decree was passed, a two-third share belonging to two of the brothers, namely, Ram Sewak and Ram Naresh was paid off and only the remaining one-third share belonging to Ram Sudhist remained unsatisfied. Dhondhey Prasad son of Ram Sudhist put in an application for execution In respect of the entire amount of the decree. An objection was made on behalf of the judgment-debtor that the two-third share belonging to the two other decree-holders having been paid off and satisfaction in respect of the said payment having been recorded by the Court, execution should be allowed to proceed only in respect of the remaining one-third share belonging to the applicant decree-holder. On behalf of the decree-holder, it was argued that payment should have been made to all the decree-holders and any partial payment of the decree in respect of the shares of the other decree-holders cannot be recorded or recognized by the Court and should therefore be ignored altogether. The execution Court gave effect to the objection of the Judgment-debtor and held that execution could be allowed to proceed only in respect of the remaining one-third share belonging to the appellant decree-holder. The decree-holder took the matter up in appeal. His appeal having been dismissed, he has filed this second appeal in the High Court.
(3.) HAVING heard learned Counsel for the appellant, I am of opinion that this appeal must be dismissed. It may be noted at the very outset that it is not claimed on behalf of the appellant decree-holder that he is entitled to the entire amount of the decree nor is it stated on his behalf that the two other decree-holders were not entitled to two-third share which has been paid off to them or to their heirs. On behalf of the decree-holder reliance has been placed on the provisions of Order 21, Rule 1, Civil P. C. which provides as follows: "all money payable under a decree shall be paid as follows, namely (a ). . . . . . . . . . (b) out of Court to the decree-holder; or (c ). . . . . . . . . . . . . . . . ";