Sarat Chandra Kundu vs Doyal Chand Seal, and Beni Madhub Mondul and Another

In this appeal, which arises out of a suit for refund of monies paid to the Defendants under sec. 295 of the CPC out of the assets realized by the sale of certain properties in execution of a decree, three questions have been raised, first, whether the Plaintiff was entitled to any refund, second, whether, if the Plaintiff was entitled to any refund, the amount ought to have been estimated with reference to the original amounts of the several decrees or only with reference to the unsatisfied portions of these decrees; and third, whether the Courts below ought not to have taken, into account certain other decrees of which a list is given in the written statement of Defendant No. 1. In support of the first contention it is argued that as the decree of the Plaintiff was against two persons, namely, Purna Chunder and Shidheswar; and as the decree in favour of Defendant No. 1 in execution of which the amount to be rateably distributed was realized, was against Purna Chunder and Raj Kumar, the Plaintiff and Defendant No. 1 could not'' be said to have been executing decrees against the same judgment-debtors within the meaning of see. 295 of the Code, and the Plaintiff was consequently not entitled to any rateable distribution under that section, and was, therefore, not entitled to maintain the present suit; and the case of Deoki Nundan Sen v. Hart (1) is referred to as favouring this contention.

We are clearly of opinion that the case cited is distinguishable from the present for this reason, that although the Plaintiffs'' decree was against Purna Chunder and Shidheswar, and the decree of Defendant No. 1 was against Purna Chunder and another person, Raj Kumar, the properties of Purna Chunder were specified in the execution proceedings and in the sale proclamation, separately, and the amount realized by the sale of Purna Chunder''s property, is separately stated. There is no question now that that was so. Therefore, practically, what Defendant No. 1 did in his execution proceedings was to proceed separately against his two judgment-debtors, against one of whom, namely, Purna Chunder, the present Plaintiff, was also proceeding to execute his decree. No question of the ascertainment of the shares of the judgment-debtors could therefore arise in this case; and so the reason of the decision in Deoki Nundan''s case I. L. R. 12 Cal. 294 (1885).does not hold good here.

It was further contended that as the Plaintiff obtained his decree not only against Purna Chunder but also against Shidheswar, that was another reason why the Plaintiff ought not to be allowed to certain rateable distribution of the sale-proceeds of Puma Chunder''s property. But it is neither alleged nor even suggested that the Plaintiff'' could possibly obtain any satisfaction of his decree by proceeding against Shidheswar. No question of the application of the principle of "marshalling " could therefore arise.

We think that the Court below was right in holding that the Plaintiff was entitled to ask for a refund; and the view we take is in accordance with the view taken in the cases of Shumbhoo Nath Poddar v. Lucky Nath Dey I. L. R. 9 Cal. 920 (1883). and Nimbaji Tulsiram v. Vadia Venhata I. L. R. 16 Bom. 683 (1892).

With reference to the second contention it would be enough to say that it is only the unsatisfied portion of the decree that ought to be taken into account in a question of rateable distribution, there being no reason why any amount should be set apart in favour of a decree-holder in proportion to any sum covered by his decree which has already been realized.

To do so would be to set apart, on account of a decree-holder, money to which he may not be entitled. If the principle of distribution contended for was correct, then a decree-holder whose decree has been satisfied very nearly in full, might still claim to have a very large amount set apart on his behalf. That would be most unreasonable.

As for the third contention, though it was raised ill the written statement, it was disposed of by the judgment of the first Court, and it was not raised in the lower Appellate Court.

That being so, we do not think we should allow it to be raised here in second appeal. The result is that the contentions urged before us all fail and the appeal must be dismissed with costs.