Pattu Chettiar and another vs Appadurai Mudaliar

Rajamannar, C.J.—This appeal against the judgment of Raghava Rao J. in C.M.A. No. 652 of 1948 arises in the execution of the decree in

O. S. No. 15 of 1941 on the file of the District Judge of South Argot. That was a suit brought on foot of a mortgage against three defendants, of

whom defendant 3 was the son of defendant 1 and defendant 2 his brother''s son. The preliminary decree declared that the total amount due to the

mortgagees-plaintiffs on the mortgage was a sum of Rs. 5021-2-4. But out of this amount, while the share of defendants 1 and 3 in the hypothecs

would be liable for the entire amount, the share of the 2nd defendant would be liable only for a sum of Rs. 4922-7-3.On appeal this Court

modified the decree passed by the District Judge by further reducing the liability of the second defendant to a sum of Rs. 3728-4-9 Subsequent to

the decree, defendants 1 and 3 appear to have paid in all a sum of Rs. 3498-15-0. The decree-holders thereafter filed an execution petition (No. 2

of 1948) against the second defendant only for the balance of Rs. 2667-9-6 due for the decree amount and subsequent interest. In this petition,

they made the statement that so far as defendants 1 and 2.were concerned, they were exonerated from the execution. The decree holders prayed

that the share of the 2nd defendant in the mortgaged properties may be sold for the amount due to them. The 2nd defendant inter alias raised an

objection to the amount for which the execution was laid. He claimed the benefit of the amount of Rs. 3498.15-0 which had been paid by

defendants 1 and 3. According to him, only about a sum of Rs. 114-10-0 was due from him, in respect of which execution could be taken against

him. The learned District Judge of South Ascot overruled the objections of the 2nd defendant and directed execution to proceed. His view was

that according to the terms of the decree all the three defendants were liable jointly and severally for the lesser sum of Rs. 3728.4-9, while for the

difference between this sum and Rs. 5021-2-4, only defendants 1 and 3 would be liable, and so long as his share of the hypothec was not

proceeded against for a liability of more than Rs. 3728-4-9, the 2nd defendant could not have any ground for complaint. There was an appeal by

the second defendant to this Court, which came up for disposal before Raghava Rao J. He allowed it in part and modified the order of the Court

below by directing that execution should proceed only for the difference outstanding after giving credit to the payment made by defendants 1 and 3

in so far as the appellant''s share was concerned. He relied in support of his conclusion on the decision of this Court in T.N.V. Kailasa Thevar Vs.

V. Ramaswami Ayyangar and Others, and the earlier case in Subramania Chettiar v. Ramachandra Reddiar (1946) 2 M.L.J. 429=59 L.W. 710.,

which was more or less to the same effect. The decision in T.N.V. Kailasa Thevar Vs. V. Ramaswami Ayyangar and Others, was subsequently

reversed by the Supreme Court in Ramaswami Aiyangar v. Kailasa Thevar (1951) 1 M.L.J. 560=64 L.W. 520 (S.C.) In our view those decisions

are of no assistance whatever for the decision of the question which arises in this case. In our opinion, the matter is really one of appropriation.

Here is a decree for Rs. 5021-2-4, for which the shares of defendants 1 and 3 were liable, but the share of the 2nd defendant was liable only in

respect of a portion of this amount, viz., Rs. 3728-4-9. In effect, it is, as it were, that there were two debts or to be more accurate, two portions

of the same debt one portion payable by all of them, and the other payable only by defendants 1 and 3 Admittedly, the money was paid by

defendants 1 and 3 who were liable not only for the sum of Rs. 3728-4-9 in common with defendant 2 but also for the excess to make up the total

decree amount of Rs. 5021 -2-4- The decree-holder in such circumstances will, we think be entitled to appropriate the payment first towards that

portion of the decree for which defendants 1 and 3 were liable and appropriate only the balance towards the portion for which they were liable

along with the 2nd defendant. We see neither law nor equity in the contention of the 2nd defendant that he should get the benefit and his liability

should be reduced by a payment made by defendants 1 and 3. The decree clearly made his share liable to the extent of Rs. 3728-4-9 and so long

as he is not made liable to a larger extent, he cannot complain. The contention on behalf of the 2nd defendant that the decree was one and

indivisible and whichever defendant made any payment the payment should go in reduction of the decree may, so far as it goes, be right, but that

does not lead to a conclusion as regards the relative liability of the parties for the balance. We actually find that what the decree-holders in effect

have done is to collect. from defendants 1 and 3 about half the amount of common liability of Rs. 3728-4-9 and the excess over the common

liability for which defendants 1 and 3 were liable, together with further interest. Having done so and having exonerated them, the decree-holders

are now proceeding against the second defendant for the other half of the common liability. The course followed by them appears to be entirely fair

and equitable and we are unable to find any legal objection to such a course.

In the result, we allow the appeal and set aside the order of Raghava Rao, J. and restore the order passed by the learned District Judge. The

respondent second defendant shall pay the costs of the appellants here and before Raghava Rao, J.