Musammat Inderbasi Kuer vs Satnarain Singh and others

Jwala Prasad, J.—This is an application against an order of the Subordinate Judge of Shahabad, dated the 11th September 1922, refusing the application of the petitioner for rateable distribution of the assets of the judgment-debtors realised in execution of two other decrees. Those decrees were obtained by the opposite party Nos. 1 and 2 Satnarain Singh and Radha Prasad Singh in Suits Nos. 84 and 85 respectively on the 1st and 9th March 1922. Sat Narain Singh and Radha Prasad Singh levied execution in respect of the aforesaid decrees in execution case Nos. 68 and 69 and the properties of the judgment-debtors were sold on the 16th September 1922. The assets realised by the sale of the properties were held by the Court. The petitioner had obtained a money decree on the 7th July 1922 in Suit No. 81 of 1922 against the judgment-debtors in the decrees obtained by the opposite party Satnarain Singh and Radha Prasad Singh in Suits Nos. 84 and 85 as well as against one Bankeshwar Parsad Singh. The petitioner put her decree in execution on the 22nd July 1922 and her application for execution was actually registered on the 8th August 1922, and the properties of the judgment-debtors were ordered to be attached on the 9th August 1922. On the 7th September 1922 the petitioner put in separate applications in Execution Cases Nos. 68 and 69 for rateable distribution of the assets that were likely to be realised in execution of the decrees of the opposite-party. The Court by its order of the 11th September, 1922, refused the application of the petitioner upon the ground that Bankeshwar Pershad Sahu, a judgment-debtor in the decree of the petitioner was not a judgment-debtor in the decrees of the opposite party in Suits Nos. 84 and 85. The reason given by the learned Subordinate Judge for his refusal to grant the prayer of the petitioner u/s 73 of the CPC is that the judgment-debtors are not the same in the decrees of the petitioner and the opposite party, inasmuch as the number of judgment-debtors in the decree of the petitioner was 7, whereas the number of judgment-debtors in the decrees of the opposite party was 6. It is undisputed that six of the judgment-debtors are common in all the decrees in question. Bankeshwar Prasad Sahu, who does not appear as a judgment-debtor in the decrees of the opposite party, is son of Ramkishun Prasad Sahu, judgment-debtor in all the decrees. The judgment-debtors who are common in all the decrees as well as Bankeshwar Prasad Sahu who appears only in the decree of the petitioner were jointly and severally liable for the amount decreed against them in the decree of the petitioner. The assets realised were from the properties which belonged only to the judgement-debtors who were common in all the decrees. Therefore the petitioner is entitled to a rateable distribution of the assets realised by the Court subsequent to the execution having been levied by the petitioner and held by the Court on the 16th September 1922.

The learned Vakil on behalf of the opposite party contends that Section 73 of the Code has no application unless all the decrees passed are against all the judgment-debtors. In other words, he contends that all the judgment-debtors in all the decrees in question must be identical. It is, however, conceded that under the corresponding provisions in Section 295 of the old CPC it was not essential that the judgment-debtors must be identical in all the decrees concerned and that a decree-holder is entitled to a rateable distribution of the assets realised from the properties belonging to the judgment-debtors who are common in all the decrees though there may be other judgment-debtors in some of the decrees. Whatever doubt that might have existed was cleared up by the decision of a Full Bench of the Calcutta High Court in the case of Gonesh Das v. Shiva Lakshman [1903] 30 Cal. 583: 7 C.W.N. 414 (F.B.). The principle of that decision seems to have been adopted by all the Courts in. India. But the contention of the learned Vakil is that the addition of the word "passed" in Section 73 of the present Code to the words that existed in the corresponding Section 295 of the old Code has in fact overruled the decisions of the Courts in India and has restricted the application of the section to cases where the judgment-debtors are identical in all the decrees concerned. Now, a mere perusal of the words in the two sections will make it clear that there was no such intention in the mind of the Legislature. The passage in question in Section 295 ran as follows:-

for execution of decrees for money against the same judgment-debtor.

Section 73 has simply added the word "passed" between the words "money" and "against" in the aforesaid passage. Section 73 says:

for the payment of money passed against the same judgment-debtor.

It appears to me that the change in the section has not in the least altered the sense thereof in the old Code, but has on the other hand, mate it clearer than what it was under the old Code. It has virtually given effect to the decision of the Courts in India in making it explicit that the decrees in execution must have been

for the payment of money passed against the same judgment-debtor.

My attention has been drawn to certain authorities in support of the contention that the word "passed" introduced in the old provision of the law has restricted the application of the section, but the authorities quoted do not go so far. In the case of Balmer Lawrie & Co. v. Jadunath Banerjee [1914] 42 Cal. 1: 19 C.W.N. 201: 27 I.C. 644 (Mukerjee and Beachcroft, JJ.) the decision was based solely upon the ground that the judgment-debtor in both the decrees in question was not the same person and is no authority for the proposition that the section does not apply and no rateable distribution can be allowed of the assets realised from the judgment-debtors common in all the decrees concerned on the ground that in some of the decrees there are judgment-debtors other than the common judgment-debtor. This is obvious from the following passage in that judgment:-

It is essential for the application of the section that the decrees should have been passed against the same judgment-debtors. This has been made clear beyond possibility of dispute by the introduction of the word "passed" which did not find a place in section 295 of the Code of 1882. But as already stated the decree held by the opposite party, in execution of which the properties have been brought into Court, was passed against Dasarathi Mukherjee, while the decree held by the petitioner was obtained against the firm of which Dasarathi Mukherjee was a partner, and is not shown to be. capable of execution against him individually.

Rateable distribution was disallowed in that case because in the view of the learned Judges, Dasarathi Mukherjee was not the same person as Dasarathi Mukherjee & Co. The same appears to be the ratio decidendi in the case of Toola Ram v. Abdul Gafur [1914] 7 Bur. L.T. 667: 24 I.C. 476, where the judgment-debtors in the several decrees in question were held not to be the same. The learned Judges, however, were of opinion that

Where there are several defendants in one decree and only some of them in another, rateable distribution has been allowed so far as the interests of those in both decrees are concerned.

This observation is directly against the contention that the word "passed" introduced in the section has restricted the application of it in any way. Now, Mukherjee, J. who delivered the judgment in the case of Balmer Lawrie & Co. v. Jadnnath [1914] 42 Cal. 1: 19 C.W.N. 201: 27 I.C. 644, which is relied upon as an authority for the contention of the learned Vakil, later in the case of Nilmani Dey v. Hiralal Das, [1917] 27 C.L.J. 100: 43 I.C. 452, observed that the judgment-debtors in the two decrees need not necessarily be the same persons provided the decree is against the judgment-debtors in their representative capacity and the estate concerned is the same. He expressly rejected any suggestion to the effect that the section should be narrowly construed. He observes.

We may add that we are not disposed to put a narrow construction upon the terms of section 73, so as to defeat the ends of justice.

On the other hand, the view taken under the old Code was followed in the decisions passed subsequent to the introduction of the new Code. In the case of Bijoy Kumar v. Rama Nath Barman [1917] 43 I.C. 715 their Lordships observed,

Now from the language of section 73 of the CPC and also from the decision of this Court in the Full Bench case reported as Ram Dayal Bagria and others Vs. Shiva Lakshman Bhakat the authority of which in our opinion has been in no way impaired by the insertion of the word "passed" in Section 73 of the new Code, in so far as the shares due from the 4 judgment-debtors common to the 2 decrees are concerned, that application was a proper application.

Vide also Ramchandra Naik v. Raghunath Saran Singh [1918] 16 A.L.J. 530: 46 I.C. 101. The contention of the learned Vakil, therefore, is concluded by the recent authorities, and there is no room for any contention that section 73 is not applicable to the present case where six of the judgment-debtors are common in all the decrees and only one of them is in excess in the decree of the petitioner. To my mind, the section itself is clear and to interpret it otherwise would work as a great hardship and would defeat the object of the section which entitled the decree holders to rateable distribution of the assets held by the Courts in execution of any of the decrees. The section is imperative. It does not need any application by the parties for rateable distribution. Only an application for execution of the decree is necessary in order to obtain the benefit of it, and once an application has been made for execution the Court is bound to distribute the assets rateably among the several decree-holders. The word in the section is "shall." The learned Subordinate Judge does not seem to have bestowed any consideration upon the point involved in the case. The authorities referred to by me could be found in any annotated edition of the CPC and still the learned Subordinate Judge summarily disposed of such an important matter before him in a few lines which I quote hereunder:-

The above petition in the presence of pleader considered. It appears that the name of one judgment-debtor (Bankeshwar Prashad Sahu) is in excess in the copy of decree, hence no order in Execution Cases No. 68 and 69 of 1922. The number of judgment-debtors must tally with the number of judgment-debtors noted in the decree filed in Execution Cases Nos. 68 and 69.

This is the whole judgment of the learned Subordinate Judge.

It is clear from the above order that the learned Subordinate Judge was cognizant of the fact that all the judgment-debtors except one were common in all the decrees before him and therefore the decrees were passed against the same judgment-debtors so far as the common judgment-debtors were concerned and this brings the case within the letter of the section, and the assets held by the Court were realized by the sale of the properties of the same judgment-debtors in all the cases and there was therefore no difficulty in allowing rateable distribution of the assets among the holders of the several decrees. But, says the learned Vakil on behalf of the opposite party there may be cases where an elaborate enquiry might be needed in order to find out the shares of the common judgment-debtors in the assets and in a summary proceeding such an enquiry could not be intended by the Legislature to be made. The provision in section 73, however, intends to give a substantial relief to the holders of decrees passed against the same judgment-debtor inasmuch as it enables all of them to get the fruit of their decrees when money is realised in the execution of one of the decrees. Therefore even if the procedure is summary, the consequences thereof are very material to the decree-holders and any enquiry that may be needed in order to give relief to the decree-holders should not be grudged by any Court.

We, therefore, set aside the order of the Subordinate Judge and direct that he will u/s 73 of the Code give relief to the petitioner by awarding his proportionate share in the assets held by the Court.

The application is allowed with costs.

Ross, J.

I agree.