Ramasray Chaudhuri vs Lachhmi Narayan Ojha

Mullick, Ag. C.J.

It is unfortunate that the learned Subordinate Judge has written judgments in these cases which do not sufficiently set out the facts, many of which appear to have been admitted before him, but are now denied before us at the hearing. We think, however, that the following facts are established.

A suit for partition was brought by Lachhmi Narayan Ojha and others against a large number of defendants among whom Mr. F.K. Rawlins was defendant 11.

The appellant before us, namely, Ramasrary Prasad Chaudhury, the son of Babu Chhatradhari Chaudhury, and Babu Bindeswari Prasad Chaudhury, the son of Babu Bhagirath Prasad Chaudhury, are the transferees of the interest of Mr. Rawlins. Chhatradhari was himself defendant 31 in the suit, but did not contest it. He died shortly after the suit was instituted and on the 20th February 1914, his sons Ramkant Chaudhury, Ramasray Prasad Chaudhury and his grandson Bindeswari Prasad Chaudhury were substituted in his place. A preliminary decree was made in the suit on the 15th December 1915 against Mr. Rawlins amongst others and against the above representatives of Chhatradhari. There was then an appeal by the plaintiff against the preliminary decree to the High Court at Patna which, on the 30th April 1920, modified the decree of the Subordinate Judge, but did not vary the order as to costs in the Subordinate Judge''s Court.

With regard to the costs of the High Court, which amounted to Rs. 1,148-11-3, all the respondents excepting respondents 2, 3 and 9 in the High Court, with whom we are not concerned, were held jointly liable. After the above decree of the. High Court Mr. Rawlins sold his interest, to Chhatradhari''s heirs who were respondents 34, 35 and 36 in the High Court decree. A final decree in the suit was-next made by the Subordinate Judge, and on the 24th April 1926 the decree-holder Lachhmi Narayan Ojha made the application for execution to which the present appeal relates.

Appeal No. 298 arises out of the order of the Subordinate Judge dated 21st September 1926 in respect of that execution. On the 19th April 1926 the decree-holder also filed another application for execution in respect of the decree of the High Court. The Subordinate Judge''s order in respect of this execution is also dated 21st September 1926. In both cases the Subordinate Judge has dismissed the objection made by the appellant and his co-sharers.

Appeal No. 298. The first objection taken in this appeal is that the execution application of the 19-4-1926 states that the date of the decree under execution is the 15-12 1915, when in fact it ought to have stated that the date of the decree was the 30th April 1920 when the High Court modified the decree of the Subordinate-Judge. On a reference to the execution application it is quite clear that it is not the decree of the Subordinate Judge but the decree of the High Court as subsequently amended which the decree-holder is executing. There is distinct reference to the High Court decree in the application and as the decree-holder was not competent in law to execute any other decree the parties and the Subordinate Judge all understood that the execution application was in order in this respect.

The next objection is that the application is barred by limitation even if it is held that the decree under execution is that of the 30th April 1920 as amended. To this the decree-holder replies that there was a previous execution on the 28th April 1923. The learned vakil for the appellants denies all knowledge of this execution application; but it is found by the Subordinate Judge that it was in fact made and was struck off for non-prosecution on 28th April 1924. It appears to be a fact that there was such an application and, therefore, the present application is within time.

The third objection is that the application of the 28th April 1923 will not be of any avail to the decree-holder because that was an execution against another set of judgment-debtors. The reply to this is that the decree for costs made by the Subordinate Judge was joint and several and that an application made against any judgment-debtor was a step-in-aid of execution against all.

The fourth objection is that in fact there was never any decree for costs against the appellants or their predecessor Chhatradhari. This is true so far as it goes, but the evidence is and it has been assumed by all parties in the Court of the Subordinate Judge that the appellants purchased the share of Mr. Rawlins after the High Court decree and they are liable for all claims against Mr. Rawlins in the suit. The final decree was made against them and they cannot be heard to say that although they got themselves substituted as Mr. Rawlius''s assignees they are free of the costs decreed against Mr. Rawlins by the preliminary decree. The decree-holder could not under the law resist the application for substitution and as Mr. Rawlins was struck off from the record, the decree-holder is entitled to look to his assignees for the execution of the decree for costs against Mr. Rawlins.

This disposes of Appeal No. 298 which is dismissed with costs.

Appeal No. 299.

This appeal arises out of the execution of the appellate decree of the High Court made on the 80th April 1920 and is confined to the costs of the High Court only.

The Subordinate Judge has disposed of the judgment-debtor''s objection on the point of limitation by holding that as the application was made within three years of the amendment made on the 9th April 1924 the application for execution, is within time. It is not necessary to proceed upon this ground which involves the consideration of the question whether time can run from the date of an amendment made after the decree was barred by limitation. It is sufficient for our purposes to dispose of the case on the ground that there was a previous execution application of the 28th April 1923 from which the decree-holder is entitled to count time. The objection that this execution application was made against some judgment-debtors other than the appellants is of no avail, because the decree is joint and several and an application made against any one of the judgment-debtors is a step-in-aid of execution.

The appellants were parties to the original decree of the High Court and also to the decree as amended. Under both they are liable for costs. Furthermore, as they are the representatives of Mr. Rawlins who was a party to the decree of the High Court they are liable for Mr. Rawlins''s costs.

The appeal is, therefore, dismissed with costs.

Wort, J.

I agree.