On payment of proportionate part of the mortgage debt petitioners can redeem their mortgage symbolically.

1. The petitioners have filed the above revision aggrieved against the order passed by the executing court in E.P.No.121 of 1985 in O.S.No.123 of 1967, dated 28.11.1990, rejecting the execution petition.

2. The property in question belonged to the plaintiffs tarward. On 28.6.1904 the plaintiff tarward executed a mortgage deed in favour of one Nallathambi. The mortgage and “purakadam” rights devolved on the defendants and they are in possession of the said property as mortgagees. So, the plaintiffs filed a suit in O.S.No.122 of 1967 on the file of the learned Additional District Munsif Court, Nagercoil to redeem the mortgage. The learned District Munsif had decreed the suit holding that the plaintiffs are entitled to redeem item Nos.1 to 3. Aggrieved against the same, the defendants 1, 2 and 5 filed appeal in A.S.No.172 of 1970 on the file of the Sub-Court, Nagercoil. The lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court dated 14.11.1967. Thereafter, I.A.No.864 of 1971 was filed by the plaintiffs for passing final decree for redemption of the property. The defendants filed a counter objecting the same. On 29.6.1974 the trial court directed the plaintiffs to deposit a sum of Rs. 13,052 for which the defendants are entitled, and passed the final decree accordingly. After obtaining the final decree, the second plaintiff took execution proceedings by filing E.P.No.121 of 1985. The other plaintiffs did not object the same. The defendants filed objections. Meanwhile, the fourth plaintiff sold his 2/5 share in the property in favour of the second defendant's wife on 27.12.1974. The first plaintiff sold his 1/5 share in favour of the 5th defendant under the sale deed dated 9.1.1975. On 4.2.1984, the third plaintiff deposited the value of improvements in court.

3. The executing court accepting the case of the defendants rejected the execution petition on the ground that except the third plaintiff, the other plaintiffs are not having any right or interest in the property and so the execution petition filed by the third plaintiff cannot be construed as for the benefit of the other decree holders. Aggrieved against the same, the petitioners have filed the above revision.

4. The learned counsel appearing for the petitioners has submitted that since the petitioners had obtained a decree and on the basis of the subsequent purchase the defendants cannot be allowed to resist the execution petition, as the third plaintiff is entitled to execute the decree under O.21 , Rule 15 of the Code of Civil Procedure. He has also further submitted that though the 5th defendant purchased the 1/5 share in the property from the first plaintiff and the second defendant's wife purchased 2/5 share of the fourth plaintiff, they have not obtained any assignment of the decree as contemplated under O.21 , Rule 16 of the Code of Civil Procedure.

5. The learned counsel appearing for the contesting respondents has submitted that the first petitioner is having only l/5th share in the property, the other namely, the 5th defendant, and the 2/5th share also had been purchased by the wife of the second defendant. According to him, in view of the fact that the possession of the property by the parties both as mortgagees and also purchasers of the major portion of the property, the execution proceedings cannot be said to be beneficial to the other co-owners, namely, the 5th defendant and the wife of the second defendant, and so the plaintiffs/petitioners cannot maintain the execution petition under O.21 , Rule 15 of the Code of Civil Procedure.

6. The first petitioner, admittedly, is the owner of the 1 /5th share in the property in question, on the basis of the final decree obtained in I.A.No.864 of 1971; he filed the execution petition, taking advantage of the provisions of O.21 , Rule 15 of the Code. O.21 , Rule 15 of the Code reads as follows:

(1) “Where a decree has been passed jointly in favour of more persons than one, a