Jamuna Prosad Singh vs (Bahuria) Ram Sakhi Kuer and Another

Dhavle, J.—This is an appeal by a judgment-debtor who made an application u/s 47, Civil P.C., in an execution case. Amrit Narain Singh sued a number of defendants for the recovery of certain shares in two mauzas and obtained a decree from the trial court. On appeal the High Court dismissed the suit. There was a further appeal to the Privy Council which restored the decree of the trial court. The decree-holder at first applied in execution for delivery of possession, when he was opposed by some judgment-debtors on the ground that as six of the original defendants had died during the pendency of the appeal to the Privy Council and had not been replaced on the record by their legal representatives, the decree of the Privy Council was a nullity in its entirety. The executing court overruled this contention, and on appeal the High Court held that the decree was a good decree against those who were "living parties" to it. Then came the present execution case, in which the applicants were Mt. Ram Sakhi Kuer, who claimed to be the daughter and sole heir of Amrit Narain Singh, and Maheswari Prasad Singh, an assignee in part from her.

In his application u/s 47 the appellant raised various objections which it is now unnecessary to set out. The present appeal is only concerned with the question whether the appellant, as one of the judgment-debtors from among the "living parties" to the Privy Council decree, is liable for any part of the costs awarded by the decree of the Privy Council, and if so, whether he is liable in excess of the proportion of the suit property in his possession. The decree for costs did not indicate the proportions in which the costs were to be borne by the respondents and the accepted rule is that such a decree imposes a joint and several liability on all the respondents, Midnapur Co. Ltd. v. Madan Marwati AIR 1923 Pat 215.

The learned advocate has urged that as six of the original defendants were not living parties to the Privy Council decree, it must be taken that Amrit Narain Singh had released them. He has further urged, somewhat half heartedly, that as a result of release of those six defendants, all the other respondents also are released from all liability under the decree. The contention however rests on an old English common law doctrine which does not find much favour in modern times even in England and which has been repeatedly held not to apply to this country: see Ram Ratan v. Aswini Kumar. [1910] 37 Cal 559, Bhawani Koer v. Darsan Singh [1911] 11 IC 450 and Moolchand v. Alwar Chetty [1915] 39 Mad 518.

As a matter of fact even if the doctrine of the release of one joint judgment debtor operating the release of all other judgment-debtors from liability were to apply there was no actual release in the case at all; what happened was that six of the defendants-respondents died on dates which some of the judgment-debtors have since succeeded in proving fell within the period of pendency of the appeal in the Privy Council. It seems to me that in the circumstances the decree-holder would, even under the common law doctrine as now applied have been in no worse position than if he had entered into a covenant not to pursue his remedies against those six defendants; and on this footing the liability of the other judgment-debtors would not be affected at all.

The learned Advocate has next contended that appellant''s has become a pro rata liability; only because if the entire costs are recovered from him as one of the joint judgment-debtors, it will be impossible for him to recoup himself in respect of the proportionate share of the costs that ought to have fallen on the six deceased defendants. Now, it may be conceded at once that this is not a case where the appellant will not be entitled to contribution from the other joint judgment-debtors: see Sreeputty Roy v. Loharam Roy [1867] 7 WR 384, Suput Singh v. Imrit Tewari [1880] 5 Cal 720 and Mahabir Prasad v. Darbhangi Thakur AIR 1919 Pat 165 which has been followed in several other High Courts: Keshav Vithal Oltikar Vs. Hari Ramkrishna Oltikar, , Parsotam Das Kolapuri and Others Vs. Lachmi Narain and Others, and Kamala Prasad v. Kishori Mohan (10), and lays down a principle which must be regarded as beyond question. It "seems clear," said the late Chief Justice in the case of Mahabir Prasad v. Darbhangi Thakur AIR 1919 Pat 165:

that the doctrine of contribution is well recognized in this country, and that the only cases in which it will not be enforced are those in which a liability arises out of a joint wrong, or where the equities of the case demand that the plaintiff should not recover as where the party sued was merely a formal defendant in the previous suit and not personally interested in the result of it. Again, there may be cases where it is just and proper that the liability should be apportioned in unequal shares.

But the mere fact that the appellant would have been entitled to contribution if the plaintiff had not failed to bring on the record the legal representative of the six defendants does not by any means establish the position, contended for by the learned Advocate, that the decree has been split up and that the appellant is no longer liable for more than his share of the costs. The point is indeed concluded by an old authority. In Jugurnath Singh v. Shaikh Ahmedoollah [1867] 8 WR 132 their Lordships held that when, once a joint decree has been given, it remains ever after a joint decree, bury act or conduct of the decree-holder notwithstanding.

I refer to this case particularly because the judgment of Hobhouse, J., shows how the authority of an earlier decision, in Bissonath Tewarry v. Koylashbany Narain Singh [1863] 2 Hay''s Rep 297, on which the learned Advocate has laid stress, was more than doubted in Nunkoo Lall v. Mt. Dhunesh Kooer [1872] 17 WR 496 is yet stronger authority against the appellant; it was held in that case, reversing the decision of the Court below, that the fact that the holder of a joint and several decree has recovered from several of the judgment-debtors money on account of the decree, and released them from further demand, does not destroy the joint and several character of the decree, and that a court executing a joint decree has no power to alter the joint character of decree which has been made.

The same principle was followed by their Lordships of the Madras High Court in Moolchand v. Alwar Chetty [1915] 39 Mad 518 already referred to. It is therefore clear that the decree cannot be regarded as split up merely by reason of the failure of the plaintiff to bring on record the legal representatives of the six deceased defendants. Even so, however, the question remains for how much of the costs decreed the respondents are entitled to levy execution against the appellant, having regard to the fact that the appellant will not be able to obtain any contribution at any rate as regards the appeal to the Privy Council in respect of the shares of the six deceased defendants. The learned Advocate for the respondents has met the situation by saying that he has express authority from his clients to give up a portion of the costs of all the courts corresponding to the shares wrongfully held by the deceased defendants in the suit properties.

This concession, in my opinion, leaves the appellant without any arguable grievance. The lower court held the appellant liable for the entire costs on the ground that there was

absolutely nothing to show that the decree-holders ever exonerated intentionally any defendant from liability.

The question of the appellant''s right to recoup himself pro rata from the deceased judgment-debtors, was apparently not argued in that court, but it seems clear that this right cannot affect the liability of the appellant for the rest of the decree with whatever rights of contribution he may have against the other judgment-debtors.

In the circumstances, I would allow the appeal to this extent only that the execution levied by the respondents will be limited to the same proportion of the total amount decreed as is borne to the total of the shares in suit by the balance of the shares arrived at by deducting the shares of the six deceased defendants. I would also make no orders about costs.

Mohamad Noor, J.

I agree.