Nathuni Narayan Singh and Others vs Mahant Arjun Gir and Others

Mullick, J.

[After stating facts His Lordship proceeded]:--Now there is nothing in the judgment of this Court in Jungli Lall v. Laddu Ram Marwari (1919) 4 Pat. L.J. 240 upon which the learned District Judge relies which precludes the plaintiffs from executing the decree against the surviving judgment-debtors. Further, the Subordinate Judge had jurisdiction to make a decree against the respondents and so long as that decree subsists he cannot be heard to impeach its validity. The decree declared that the 51 defendants were all jointly liable for the decretal sum Therefore, u/s 43 of the Indian Contract Act, each defendant was liable for the whole debt and it was open to the plaintiffs to proceed against one judgment-debtor or all according as he pleased. The fact that one of them happened to be dead at the time the decree was made cannot affect the right of the decree-holders to recover the money in execution from all or any of the survivors. What would have been the position if the decree-holders had sought to sell the entire tenure in execution is not a question that we are concerned with at the present moment. The appeal will succeed and be decreed with costs in this Court and in the Court of the District Judge.

Dawson-Miller, C.J.—I agree. I merely wish to add, as I was a party to the Full Bench decision of Jungli Lall v. Laddu Ram Marwari (1919) 4 Pat. L.J. 240 upon which the learned District Judge relied in support of the decision at which he arrived, that that decision cannot be taken as an authority for the broad proposition which the learned District Judge appears to think it laid down. The only question in that case was whether the property of one of two defendants in the suit who had died before the decree was passed and against whom, before the decree was passed, the suit had abated, was liable to be taken in execution of that decree. It was contended on behalf of his representatives that the decree was a nullity in so far as the deceased was concerned. This Court accepted that argument and held that a decree passed against a deceased person was a nullity in so far as that deceased person was concerned but the Court never laid down the broad proposition that if one of several defendants happens to die before a decree is passed and no one is substituted in his place, the whole decree passed in ignorance of his death is a nullity even against the other defendants in the suit. I entirely agree with the judgment just pronounced by my learned brother.