Judgment : 1. The respondent herein filed the suit O.S.No. 7 of 1987 for recovery of money against the petitioner and the said suit was decreed. Pursuant to the said decree, the respondent filed an execution petition E.P.No. 19 of 1996 seeking the arrest of the petitioner. The executing court, by order dated 23. 97 has allowed the application and ordered the arrest. As against this order, the present revision has been filed. 2. Mr. S.V. Jayaraman, the learned senior counsel contended that the petitioner filed the suit O.S.19 of 1983 against the respondent herein and obtained a decree for recovery of money. The said decree amount has to be adjusted in this execution petition filed by the respondent and the petitioner is liable to pay only the balance. The lower court is not correct in refusing to adjust the amount and ordering the arrest. 3. On the contrary, Mrs. Chitra Sampath, the learned counsel for the respondent contended that the respondent had made an endorsement in the suit O.S.No. 19 of 1983 where he obtained a decree against three persons. The endorsement is to the effect that the respondent will proceed against the defendants 1 and 2 and only after exhausting his remedy for recovery of the decree debt against the defendants 1 and 2, he is entitled to proceed against the third defendant in the said suit, who is the respondent herein. Unless the petitioner establishes that he had exhausted the remedy of recovery against the defendants 1 and 2 in his suit O.S.No. 19 of 1983 he is not entitled to claim any adjustment of the said decree amount. 4. I carefully considered the contention of both the counsel. The joint endorsement made O.S.No. 19 of 1983 is as follows: "A decree may be passed in favour of the plaintiff as prayed for with costs but without prejudice to the contentions of the third defendant.
4. I carefully considered the contention of both the counsel. The joint endorsement made O.S.No. 19 of 1983 is as follows: "A decree may be passed in favour of the plaintiff as prayed for with costs but without prejudice to the contentions of the third defendant. It is agreed that in case the plaintiff is not able to realise the decretal amount from the defendants 1 and 2 and the attached amount and the assets of Dl and D2, the 3rd defendant will be liable and it will be open to the plaintiff to realise the same from D3 in this proceedings." From the above endorsement, it is clear that the petitioner herein has agreed to proceed against the defendants 1 and 2 in his suit and only if he is not able to realise the decree amount from the defendants 1 and 2 therein, he is entitled to proceed against the third defendant, who is the respondent herein. The said joint endorsement was amended by order dated 26. 97 in E.A.191/97 in E.P.34/94 to the effect that in case if the petitioner is not able to recover the decree debt in O.S.No.19 of 1983 from the defendants 1 and 2 therein, it may be open to him to proceed against the third defendant by seeking the relief of arrest as well as to proceed against his properties. 5. The question for consideration is whether the petitioner is entitled to seek for adjustment of his decree amount towards the decree obtained by the respondent herein. 6. Order 21, Rule, 18 C.P.C. deals with the execution of cross -decrees. Rule 18(1) is as follows: "18. Execution in case of cross-decrees.
5. The question for consideration is whether the petitioner is entitled to seek for adjustment of his decree amount towards the decree obtained by the respondent herein. 6. Order 21, Rule, 18 C.P.C. deals with the execution of cross -decrees. Rule 18(1) is as follows: "18. Execution in case of cross-decrees. (1) Where applications are made to a court for the execution of cross- decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court, then — .(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and .(b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum." This provision makes it clear that where the applications are made for execution of the cross-decrees in separate suits for recovery of the decree debts passed between the same parties and capable of execution at the same time by the court, sub-clause (a) and (b) provides what the court should do. 7. At the outset, it has to be considered whether the decree in O.S.No.19 of 1983 obtained by the respondent is executable at this stage against the petitioner herein. From the above stated facts, it is clear that the joint endorsement in the suit O.S.No.19 of 1983 is to the effect that the petitioner has to proceed against the first and second defendants therein to recover the decree debt and in case if the decree debt is not recoverable from those defendants, then only the petitioner can proceed against the third defendant. The amendment ordered subsequently in E.A.No.191 of 1997 also do not change or modify the joint endorsement. The amendment is clear that in case if the petitioner is unable to proceed against the attached properties of the first and second defendants in order to recover the decree debt in O.S.No. 18 of 1983, then he is permitted to proceed against the third defendant therein, the respondent herein to recover the decree debt by way of arrest as well as by way of attachment of his properties.
Hence in order to proceed against the third defendant to recover the decree debt in O.S.No.19 1983, it is the foremost duty of the petitioner to satisfy the court that he is not able to recover the decree debt from the first and second defendants therein and as such he is entitled to proceed against the third defendant, the respondent herein. Then only it can be said that the decree in O.S.No. 19 of 1983 is executable against the respondent herein. Till then, it is not an executable decree so far as the respondent herein is concerned. 8. The petitioner herein do not plead or put forth any plea to the effect that in spite of his best efforts he could not recover the decree debt from the first and second defendants in O.S.No. 19 of 1983 either personally or from out of the already attached properties. The attachment of the properties of the first and second defendants therein concedingly still continues. Hence at this stage it is not open to the petitioner to execute the decree in O.S.No.19 of 1983 against the respondent herein and as such he cannot plead any adjustment towards his liability in the E.P.No.19 of 1996 in O.S.No.7 of 1987. Hence the order of the lower court is confirmed and the civil revision petition is dismissed. However, there will be no order as to costs.