C.S. Narayanaswami Iyer vs Narayana Sarma

T. Sathiadev, J.—C.M.A. No. 299 of 1976 is filed against an order made in E.A. No. 368 of 1975 which was filed to transfer the decree

for collecting the trial Court''s costs from the plaintiff by the first defendant as provided in A.S. No. 443 of 1967 of the High Court. Madras. This

application was ordered on the ground that the decree can be executed even though at the time when the decree was passed by the High Court,

the 8th appellant who was the 10th defendant in the suit had died on 28th May, 1972 which was anterior to the disposal of the appeal an 9th

August, 1973 and the legal representatives of the 8th appellant hat not been brought on record. The counsel for the appellant contends that the

decree made in A.S. No. 443 of 1967 which was filed against O.S. No. 95 of 1965 was a joint and indivisible decree and the reliefs decreed

being common, since the legal representatives of the 8th appellant had not been brought on record in time, the entire decree is a nullity and it is

open to the appellant herein to plead in the execution proceedings that the decree is inexecutable. On the materials placed before the Court below,

it is established that the 8th appellant died on 28th May, 1972, and this fact was not brought to the notice of the High Court when A.S. No. 443 of

1967 was taken up for hearing and disposed of on 9th August, 1973. The appeal was allowed and it was ordered therein that the plaintiff is liable

to pay the costs of the defendants. The contention is that when the entire decree cannot be executed, there can be no question of realisation of

costs by the first defendant alone, even though in the decree made by the High Court, the costs payable to the respective defendants had been

separately provided for. In support of the contention that even in Executing Court, it is open to a party to plead about nullity of a decree, he relies

upon the decision in Sunder Dass Vs. Ram Prakash, and Seth Hiralal Patni Vs. Sri Kali Nath, . In the last of these decisions, it has been held that

the executing Court can go into the question of finding out whether the decree had been passed by Court without jurisdication which may be

pecuniary or territorial or in respect of the subject-matter, which would strike at the very authority of the Court to pass the decree But the decision

entered in Sunder Dass Vs. Ram Prakash, is to the effect that an executing Court cannot go-beyond the decree, nor can it question it''s legality or

correctness, but there is one exception to this general rule which would be on the ground that the Court had no inherent jurisdiction to pass the

decree. Hence before the executing Court it can be shown that the decree was a nullity and therefore it cannot be executed. In this case, 8th

appeallant was dead at the time when the decree was passed by the High Court and therefore it is contended that the decree passed as against a

dead person will be a nullity and it being a general and indivisible one, it cannot be executed even as against the first defendant. Hence the next

aspect to be considesed is whether the decree that has been passed is a joint and indivisible one. For this, counsel for the appellant refers to the

decision in The State of Punjab Vs. Nathu Ram, wherein it has been held that when a decree is a joint and indivisible one, it will have to be

dismissed if the appeal had become abated as against one of the parties and the legal representatives have not been brought on record in time. In

the absence of one joint-decreeholder, the appeal is not properly framed, and hence as against the surviving decree holders, it cannot be

proceeded with. Thereafter he refers to the decision in Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, wherein also it

has been held that if pending an appeal, one of the appellants dies and the legal representatives have not been brought on record the surviving

appellants cannot be said to have filed the appeal as representing the deceased appellant and therefore the appeal of the deceased appellant abates

and does not proceed any further. Reference is also made to the decision in Ramagya Prasad Gupta and Others Vs. Shri Murli Prasad and Others,

which deals with a case of partnership wherein it has been held that the Court''s will not proceed with an appeal when the success of the appeal

may lead to the Court''s coming to a decision which may be in conflict with the decision between the appellant and the decased-respondent, and

therefore it would lead to the Court s passing a decree which will be contradictory to the decree which had become final with respect to the same

subject-matter between the appellant and the deceased respondent and hence the decree against the surviving respondent will become ineffective,

due to the legal representatives not being brought on record within the period of limitation in respect of one of the dead parties. In Muthuswamy

and Another Vs. V. Venugopalan, the propositions laid down in the decisions above referred to had been followed. Hence, if it be shown that the

decree which is now sought to be proceeded against the plaintiff is a joint and indivisible one then, the appellant will be entitled to the relief he has

asked for. O.S. No. 95 of 1965 was filed by the appellant herein for recovery of a sum of Rs. 14,580 from the first defendant personally and from

and out of the suit properties in the hands of defendants 2 to 18 with a charge on the said properties and for costs. The suit was decreed for a sum

of Rs. 13,119.19 with interest and proportionate costs payable by defendants 2 and 5 to 18 from and out of the suit properties in their hands and

the first defendant was made personally liable to a sum of Rs. 125. Counsel for the appellant refers to the finding given in that judgment to show

that but for the liability of the defendant there can be no question of passing any decree as against other defendants who are all alienees and charge

being created in respect of the properties conveyed in their favour.

The trial Court has passed a decree so far as the first defendant is concerned under issue No. 11 to the extent of only Rs. 125 on the ground

that only to that extent he has been benefited. But in respect of the other amounts, it had not passed any decree, as against the first defendant. Even

though the counsel for the appellant refers to the other fiindings in this judgment on issue Nos. 5 and 8, in the context of this Court in A.S. No. 443

of 1967, setting aside the judgment of the trial Court, it cannot be of much assistance to the counsel for the appellant to rely on those findings and

try to show that the decree that was passed by the trial Court was in effect only against the first defendant and not against others and it was a joint

and indivisible decree. The reference made by the counsel to the memo, of grounds filed in that appeal in the High Court wherein in ground No.

38, it has been stated that the Court below was wrong in passing a joint decree for the entire amount due to the plaintiff from the first defendant

and that the first defendant was also one of the parties in that appeal, and therefore it is clear that the suit claim was a joint and indivisible one

whatever be the manner in which the decree had been drafted, cannot be of any assistance to the appellant. Counsel for the respondent contends

that to find out whether a particular decree is joint and indivisible one has to look into the nature of the claim, the prayer in the plaint, the actual

manner in which the decree had been passed and any reference to be made to the judgment can be only for understanding the decree and when

the decree provides for a specific liability, there can be no question of trying to find out the nature of rights claimed in the suit by referring to the

judgment for coming to a different conclusion. Regarding the ground No. 33 in the memo, of grounds filed in A.S. No. 443 of 1967 he contends

that it cannot have any binding effect in the fact of what is clearly provided in the decree itself. Lastly he contends that the High Court decree had

provided for different amounts to be collected by the respective defendants and even the trial Court had passed a decree only for a sum of Rs. 125

as against the first defendant and therefore there is no question of a joint and several decree being passed in this matter and the contention that the

decree of the High Court is a nullity cannot be accepted.

I have already referred to the fact that the judgment of the trial Court had been set aside and the High Court has passed a decree stating as

follows:

The plaintiff-first respondent-herein do pay the first appellant-first defendant the sum of Rs. 1,052.50 (Rupees One thousand and fifty two and fifty

paise) being the costs in the trial Court.

It is for this amount the present execution has been taken out. Paragraph 3 deals with the costs payable to the second defendant, and paragraph 4

refers to the costs payable to defendants 5 to 14 and 16 and 17 in the trial Court. Paragraph 5 deals with costs payable in the appeal by

defendants, 1, 2, 5 to 14 and 16 to 18. Therefore, the High Court has made separate calculation of the costs payable by the plaintiff to the

respective defendants. In the trial Court, the liability of the first defendant was limited only to Rs. 125. Aggrieved by this portion of the decree, he

had joined with other defendants in the appeal preferred to the High Court and ground No. 42 refers to the same. Therefore, merely because the

first defendant had joined with other defendants in the appeal, it cannot be inferred that the decree is a joint and indivisible one. The contention that

but for the liability of the first defendant, other defendants will not be within the scope of the suit, cannot be a ground to treat the decree as drafted

as a joint decree. As contended by the counsel for the respondent, if no appeal had been filed in the High Court, the only relief which the plaintiff

could have had was to demand payment of Rs. 125 by the first defendant and nothing more. Regarding the rest of the decree, the plaintiff had to

confine himself only against the other defendants mentioned in the decree, and nothing more than Rs. 125 can be recovered from the first

defendant. No doubt counsel for the appellant contends that this was an unfortunate omission in the decree of the trial Court. But when the Court

passes a decree, in a specific manner there is no question of construing it is anything different from what it unambiguously provides and the

judgment cannot be looked into to vary the decree because nothing prevented the plaintiff to ask for the amendment of of the decree. He had not

done it. Therefore even in the judgment of the trial Court, in paragraph 25 under issue No. 11 it has been held that the first defendant was

benefited only to the extent of Rs. 125 and therefore only to that extent, the decree had been passed separately as against him. But on appeal it has

been set aside and the High Court has directed that the plaintiff is liable to pay the costs of the first defendant in the trial Court for a specific

amount. I have already referred to the manner in which the decree has been made out for different defendants and that being so, this is not a case

where the concept of general and indivisible decree will be applicable. Hence, even though the 8th appellant died before the passing of the decree

by the High Court, the decree in A.S. No. 445 of 1967, has not become a nullity for the failure to bring on record the legal representatives of the

8th appellant, so far as the first defendant is concerned and the High Court has fastened a liability on the plaintiff to pay first defendant''s costs in

the trial Court by specifying the amount payable by the plaintiff. Hence, the proceedings no-v taken for realising that amount from the plaintiff is

valid. Hence the C.M.A. and C.R.P. are dismissed. No costs.