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Judgment
This revision petition is directed against the order dated 01.08.2015 passed by the court below, whereby the application filed by the petitioners under
Order XXI, Rule 1 & 2 CPC has been rejected.
A suit for possession and mesne profit on the ground of title was filed by 43 plaintiffs through their power of attorney holder against the respondent
No.1 Shri Ram Patghya Granthagar Samiti in the court of District Judge, Churu; the suit was transferred to the court of Civil Judge (Sr.Div.),
Ratangarh for disposal.
The defendant filed written statement and denied the title of the plaintiffs and claimed the plea of adverse possession against the plaintiffs.
After evidence was led by the parties, the trial court dismissed the suit.
As 08 plaintiffs expired during the pendency of the suit and their legal representatives were not brought on record, remaining 35 plaintiffs filed an
appeal against the judgment & decree dated 09.04.2015 before the Additional District Judge, Ratangarh.
During pendency of the appeal, 15 appellants / plaintiffs expired and again steps were not taken by the power of attorney holder for bringing on record
the legal representatives of the deceased appellants.
After hearing the parties, the Additional District Judge, Ratangarh reversed the decree passed by the trial court and decreed the suit for possession
and mesne profit on the basis of title filed by the plaintiffs against the defendant.
The defendant filed second appeal before this Court. During pendency of the second appeal, the petitioners in the present revision petition filed an
application under Order I, Rule 10 CPC for being impleaded as respondents to the second appeal, the application was allowed on 22.09.2014. The
second appeal was dismissed on 09.12.2014.
Against the judgment in the second appeal, the respondent No.1-defendant filed Special Leave Petition, which was rejected by Hon'ble Supreme
Court.
It is claimed by the petitioners in the revision petition that some of the original plaintiffs, their heirs/successors lost confidence in the power of attorney
holder and they gave power of attorney to petitioner - Lalit Kumar. It is claimed that the petitioner in his own capacity and as power of attorney holder
of other plaintiffs required the judgment-debtor to handover the possession of the suit property and to pay costs as imposed by this Court and mesne
profit. On which, on 10.03.2015, the respondent No.1 handed-over possession of the subject matter of the decree and paid the cost awarded in the
second appeal to the petitioners, by way of full satisfaction of the decree out of the court. The petitioner filed Execution Application No. 2/2015
purportedly under Order XXI, Rule 1 & 2 CPC r/w Section 151 CPC requesting the court to certify that the decree dated 29.03.2011 passed by the
Additional District Judge, Ratangarh has been fully satisfied.
The application was opposed by the decree-holders other than those who gave power of attorney to the petitioner - Lalit Kumar.
The executing court, after hearing the parties, by its impugned order dated 01.08.2015, came to the conclusion that as all the decree-holders have not
claimed satisfaction of the decree and objection has been raised by the other joint decree-holders, it is not justified to accept the application under
Order XXI, Rule 1 & 2 CPC and consequently, rejected the application.
Learned counsel for the petitioners made submissions that as the applicants/petitioners are decree-holders and as the possession of the suit property
has been handed-over to them, the same amounts to satisfaction of the decree and therefore, the trial court was not justified in rejecting the application
filed by the petitioners.
During the pendency of the present revision petition, by order dated 08.03.2019 passed by a Co-ordinate Bench of this Court, the application filed
under Order I, Rule 10 CPC for impleadment by applicant Seth Jugal dass Ganeriwala Charitable Trust ('Trust') through trustee and general power of
attorney holder Shri Hanuman Prasad, after detailed discussion, was allowed and the applicant Trust was allowed to be impleaded as party respondent
No.2 to the revision petition.
Submissions were made with reference to provisions of Order XXI, Rule 15 CPC contending that as the said provision empowers any one or more of
the joint decree-holders to apply for execution of the whole decree, in the same manner the satisfaction can always be recorded by few decree-
holders and as such, the executing court fell in error in rejecting the application filed by the petitioners.
Attempts were made to question the status of the Trust and to reagitate that it was not a necessary party either to the present revision petition or to
the proceedings for execution and therefore, once the possession has been handed-over to the petitioners, the application should have been allowed. It
was prayed that the revision petition be accepted.
Reliance was placed on Jagdish Dutt & Anr. v. Dharam Pal & Ors. : AIR 1999 SC 1694.
Learned counsel appearing for the respondent No.2 - Trust vehemently opposed the submissions. It was submitted that filing of the application before
the executing court under Order XXI, Rule 1 & 2 CPC claiming satisfaction and filing of the present revision petition is wholly malafide and the
petitioners essentially are hand in glove with the judgment-debtor. It was submitted that only with a view to obstruct the execution of the decree for
possession, the present action has been initiated by the petitioners at the instance of the judgment-debtor.
Further submissions were made that the possession of the suit property continuous to remain with the judgment-debtor and the entire attempt on part
of the petitioners is to frustrate the decree passed in favour of the family.
With reference to the submissions made, it was submitted that the claim regarding satisfaction recorded by few decree- holders being sufficient is
absolutely baseless, inasmuch as, the provisions of Order XXI, Rule 2 envisage satisfaction of the decree-holder and satisfaction of a part of the
decree-holder cannot be taken as full satisfaction and therefore, the executing court was justified in rejecting the application.
Reliance has been placed on Valchand Gulabchand Shah v. Manekbai Hirachand Shah & Anr. : AIR 1953 Bombay 137.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at the decree passed by the Additional District Judge, Ratangarh (Churu) would reveal that the decree for possession was passed in
favour of all the plaintiffs, which as noticed herein-before were 43 in number before the trial court and initially 35 in number before the appellate court,
from which another 15 died during pendency of the appeal leaving behind 20 appellants.
It is also not in dispute that the present application under Order XXI, Rule 1 & 2 CPC seeking to claim satisfaction of the decree was filed by only a
few of the decree-holders. The provisions of Order XXI, Rule 2 in so far as relevant reads as under :-
Payment out of Court to decree-holder.- (1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is
other adjusted in whole or in part to the satisfaction of the decree-holder, the decree- holder shall certify such payment of adjustment to the Court
whose duty it is to execute the decree, and the Court shall record the same accordingly.
(emphasis added) A perusal of the above indicates that the requirement of satisfaction is that of the 'decree-holder' and it is the decree-holder, who is
required to certify the adjustment to the Court whose duty is to execute the decree. The word 'decree-holder' in the provision cannot be read as part
of the decree-holder. Where the decree-holder are more than one or a body of decree-holders, the satisfaction sought to be projected by few / part of
the joint decree-holders, could not have been taken by the executing court as full satisfaction.
The reliance placed on provisions of Rule 15 of Order XXI CPC also is wholly misplaced, rather the language of the said provision goes against the
case of the applicants. The provision reads as under :-
Application for execution by joint decree-holders.- (1) Where a decree has been passed jointly in favour of more persons than one, any one or
more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of
them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(emphasis added) A perusal of the above indicates that where a decree has been passed jointly in favour of more than one person, the application has
to be made for execution of the whole decree for the benefit of them all and not for few of the joint decree-holders, as such, the plea raised based on
the above provision has no substance.
The issue as raised has been settled long back by the Bombay High Court in the case of Valchand (supra), wherein it was laid down that payment to
one of the several joint decree- holders cannot be recognised as a payment to all (unless he is authorised to receive such payment on behalf of all),
and does not amount to a 'pro tanto' satisfaction even to the extent of what is regarded to be the share in the decree of the decree-holder who
receives payment. The contention that the remaining decree- holders can maintain the execution application only to the extent of their own shares in
the decree was not accepted. It was also held that the remaining decree-holders are entitled to execute the whole decree. If it results in double
payment having to be made by the judgment-debtors, they may be in a position to recover from the other decree-holder, the amount which they
wrongly paid to him.
In Mihir Bose v. Jobeda Khatun : 1959(63) CWN 570, Calcutta High Court laid down as under :-
It cannot also be said that adjustment of such a decree with some of the decree-holders to the exclusion of the rest is a bonafide adjustment. For
these reasons and in view of the wording of 0. XXI, r. 2(i) of the Code of Civil Procedure, I am of opinion that an adjustment of a joint decree of this
nature by some out of the entire body of decree-holders is not valid in law. That being the position, the remaining decree-holders are entitled to
execute the whole decree, as it was originally passed. Should such an adjustment at the instance of some of the decree-holders be recognised, then
the original decree for khas possession would be converted into a new decree for joint possession and it is not permissible for the court to create such
a new decree which should be at variance with the original decree. This view gains support from the case reported in 32 C.W.N. 434, (3) Azizur
Rahaman Choudhury v. Aliraja Choudhury. In this view of the matter. I am of opinion that the so-called adjustment was not a valid or legal adjustment
and it should be ignored, and the lower appellate court is right in-holding that the entire decree for possession is capable of execution at the instance of
the decree-holders who were not parties to the adjustment. The first contention raised on behalf of the appellant, therefore, fails.
Again in Dattya v. Vithal : 1990(1) BomCR 304, the Bombay High Court, inter-alia, laid down as under :-
Another aspect of the case is that the decree sought to be executed is a joint decree and has to be executed as such. The decree for possession of
the lands was made in favour of Dattya Gangya and defendants Nos.2 and 3 jointly. Admittedly, defendants Nos. 2 and 3 were not the parties to the
adjustment of the decree. An adjustment of a joint and indivisible decree for khas possession by some out of the entire body of the decree-holders is
neither bona fide nor valid in law. It is not open to one of the three joint decree holder of the decree to adjust the decree so as to bind other decree-
holders. One out of several decree-holders needs to have specific authorisation from other decree to enter into a compromise or adjustment on behalf
of the other decree- holders. No such specific authorisation in favour of Dattya was alleged by the judgment debtor in his objection. Petitioner Dattya
Dhondya does not allege that there was specific authorisation in favour of Dattya by other decree- holders to enter into the alleged compromise or
adjustment. The decree holder had, therefore, no authority to agree to give half of the lands from the three survey numbers to the judgment debtor by
way of adjustment of the decree ignoring the rights of the other decree-holders to have khas possession of the three lands jointly with him.
Ascertaining the respective shares of the decree-holders in a joint decree is foreign to the nature of the execution proceedings. In the absence of any
specific authority it cannot be said that the adjustment of the decree by the decree-holder Dattya with the judgment debtor Dhondya is a legal
adjustment.
So far as the judgment relied on by learned counsel for the petitioners in the case of Jagdish Dutt (supra) is concerned, in the said case the basis for
claiming satisfaction was different, as the judgment-debtor had purchased a part of the property, which is not the case here.
In view of the above, the claim made by the petitioners has no substance and the executing court was, therefore, justified in rejecting the application.
The conduct of the petitioners is strange, inasmuch as, despite being decree-holders, instead of filing an application for executing the decree, they on
their own, approached the executing court by filing application seeking certification in favour of the judgment-debtor regarding the satisfaction of the
decree and once they failed in their attempt, essentially to frustrate the right of other joint decree-holders, they have approached this Court by filing the
revision petition seeking to justify their stand before the executing court, which conduct, as contended by learned counsel for the Trust, cannot be said
to be bonafide.
So far as the submissions made by learned counsel for the petitioners seeking to question the validity of impleadment of the Trust in the present
revision petition is concerned, as noticed herein-before, a Co-ordinate Bench of this Court has passed a detailed order taking into consideration all the
aspects and dealing with contentions raised before it, before permitting the Trust to be impleaded as party, which order is now not open for variation
and / or review.
In view of the above discussion, there is no substance in the revision petition, the same is, therefore, dismissed.