Sadho Saran Pande vs Mt. Subhadra and Others

Das, J.—This appeal is directed against the order of the learned District Judge of Saran, dated the 25th August 1924, by which he refused an application by one of the decree-holders under the provision of Order 21, Rule 2, paragraph 1.

Sona Koer and Subhadra Koer recovered a decree for costs as against the appellant. The decree-holders took out execution. An application was thereupon presented on behalf of the judgment-debtor apparently under the provision of Order 21, Rule 2, paragraph 2 of the Code. He alleged that he had paid the entire decretal amount to Sona Koer and he applied that the payment be certified. His application was supported by a petition of Sona Koer; but it appears that the Court of first instance thought that the application was not a bona fide one and dismissed it on the 10th of May 1924. On the 5th June 1924 the judgment-debtor preferred an appeal to the Court of the District Judge of Saran. On the 28th June 1924 Sona Koer herself presented an application which has given rise to these proceedings by which she certified the payment alleged to have been made to her and asked the Court to record the payment. She gave evidence in support of her application and the learned Munsif, accepting her story, allowed her petition and dismissed the execution case on full satisfaction. Thereupon Subhadra Koer appealed to the District Judge of Saran, and the learned Judge has taken the view; first that the order of the 10th May 1924 operated as res judicata thereby putting an effectual bar on the right of the Court to give any effective relief to the judgment-debtor; and secondly that it was not open to a joint decree-holder to give a valid discharge to the judgment-debtors. In these circumstances he allowed the appeal (sic) dismissed the application of Sona Koer. (sic) judgment-debtor being the party aggrieved, now appeals to this Court.

In my opinion the order of the 10th May 1924 does not operate as res judicata. That order was passed on the application of the judgment-debtor apparently under Order 21, Rule 2, paragraph 2 of the Civil Procedure Code. There was nothing to prevent the decree-holders themselves from certifying the payment to the Court, and this is exactly what was done by Sona Koer on the 28th June 1924.

In regard to the other question raised by the learned District Judge, I entirely agree with his view that it is not open to one of two joint holders of a decree to certify satisfaction of the whole decree so as to bind the other decree-holder. It is not necessary for me to deal with this point at length; it is sufficient for me to refer to Tamman Singh v. Lachhmin Kunwari (1904) 26 All. 318 and Mirza Umrao Beg Vs. Mirza Mukhtar Beg and Others, . But at the same time, I am of opinion that a joint decree-holder may certify satisfaction in respect of his own interest therein. This point is not dealt with in the judgment of the lower appellate Court. There is no injustice in passing an order of this nature as Sona Kuer is bound by her own admission that she has received the entire decretal amount. Subhadra Koer is only entitled to her share of the decretal amount and she is entitled to execute her decree to that extent. There is no reason to put her in a better position than that. This view is supported by the decisions to which I have referred.

The result is that we vary the order passed by the Court below by directing that the payment made to Sona Kuer be recorded and that Subhadra Koer be allowed to execute the decree to the extent of her half-share therein.

There will be no order for costs.

Adami, J.

I agree.