Somar Singh and Others vs Mt. Premdei Kuer and Others

Jwala Prasad, J.—Miscellaneous Appeal No. 68 is by Defendants Nos. 2 and 5 to 8 and Miscellaneous Appeal No. 74 is by Defendants Nos. 4, 9 to 11. The defendants Nos. 1 and 3 are not parties to these appeals.

The respondents obtained a decree against the aforesaid 11 Defendants in a suit for contribution. The decree was passed on the 6th May 1910, for Rs. 10,672-2-0 on account of principal and Rs. 1,104-12-0 on account of interest, making a total of Rs. 11,776-14-0. The liabilities of the defendants were split up and incorporated in the decree by an order amending the decree, dated the 30th July 1910 The Defendants Nos. 1 and 3 were made liable for Rs. 3,985-10-4; Defendants Nos. 2 and 5 to 8 for Rs. 3,925-10-4 and Defendants Nos. 4 and 9 to 11 for Rs. 3,925-10-4.

Against this decree the Defendants Nos. 1 and 3 appealed to the High Court of Calcutta on the 19th December 1910. The plaintiffs and the remaining defendants, who are appellants before us were impleaded as respondents in that appeal. The plaintiffs preferred a cross-objection against the part of the decree whereby their claim was reduced. They had claimed Rs. 15,660-6-9 on account of principal and interest; their claim was reduced by about Rs. 5,000, more or less. The High Court of Calcutta by its judgment dated the 19th January 1915, dismissed the entire claim of the plaintiff; their cross-appeal also failed.

The parties to the litigation, both the plaintiffs and the defendants, were members of a joint Mitakshara family, and the claim of the plaintiffs was more or less based upon an Ekrarnama, dated the 13th August 1907, whereby the rights of the plaintiffs and the defendants or their respective predecessors as between themselves were settled. The High Court held that the claim of the plaintiffs to contribution was hopelessly barred and that the plaintiffs failed to show that the moneys borrowed from Ganga Prasad, which were the subject-matter of the litigation, were used to pay off the joint debts.

The plaintiffs appealed to His Majesty-in-Council, and the decision of the High Court was set aside by the order of His Majesty-in-Council, dated the 21st December 1920. The operating portion of that order runs as follows:

(1) That this appeal ought to be allowed, the decree of the High Court of Judicature at Fort William in Bengal, dated the 19th day of January 1915, set aside without costs and the decree of the Court of the Subordinate Judge of Patna, dated the 6th day of May, 1910, restored, and

(2) that there ought to be no costs of this appeal.

On the 27th April 1921, the High Court directed the aforesaid decree of His Majesty-in-Council to be sent down to the lower Court for execution. Thereupon the decree-holder on the 3rd August 1922, presented an application in the Court of the Subordinate Judge of Patna, for executing the said decree of His Majesty-in-Council against all the defendants.

There were three sets of objections filed against the execution of the decree by the aforesaid three sets of judgment-debtors respectively. These objections were overruled by the Subordinate Judge by his order, dated the 10th March 1923. The Defendants Nos. 1 and 3 have not challenged the order of the Subordinate Judge. The other sets of the defendants have come to this Court in appeal. Their petition in the Court below raised various objections; but in the present case we are concerned only with one objection of theirs, namely, that the execution of the decree in question is barred by limitation. This objection is common to both the appeals, and consequently one judgment will be sufficient to dispose of both of them.

The objection is a short one. It is said that the decree of the Subordinate Judge was passed on the 6th May 1910, declaring separate liabilities of these appellants in two cases, viz., Rs. 3,925-10-4 to be paid to the plaintiff by each set of defendants; that these sets of defendants had not preferred any appeal to the High Court and the separate decrees against them embodied in one decree of the Court below became final; that the execution of the portions of the decree against these sets of defendants should have been levied within three years of the 6th of May 1910, the date of the decree, and that no execution was levied nor was any step taken to advance execution of the decree against these appellants. Hence it is urged that the decree against them became barred by lapse of time long before 19th July 1915, when the High Court dismissed the plaintiff''s claim, and that the order of His Majesty-in-Council simply restores the decree of the Subordinate Judge and the execution is virtually in respect of the decree passed by the Subordinate Judge and the effect of the order of His Majesty-in-Council is to revive the decree which, as stated above, was long before time barred.

Now it has not been disputed in this Court that the respondents are executing only the order of His Majesty-in-Council and that the order fastens the liability of the claim of the plaintiff on all the defendants including the appellants before us; but it is said that it could not have been contemplated nor could it be the result of the order of His Majesty-in-Council to revive the decree of the Subordinate Judge which was barred as against these defendants, the appellants before us. It appears to me that we are not competent, nor was the Subordinate Judge competent who was executing the decree in question, to go behind the order passed by His Majesty-in-Council. That order may be right or wrong; but we have to take it as it is, and the only duty of the Courts in India is to give effect to the order in question and, as stated in the concluding portion of the order, to punctually observe, obey and carry the same into execution. The grievance of the appellants, if any, could be rectified by His Majesty-in-Council alone, and the remedy as recommended in the case of Premlall Mullick v. Sumbhoo Nath Roy (1895) 22 Cal. 960 was to approach His Majesty-in-Council and to get the mistake, if any, rectified. This course has not been so far adopted, and the order of His Majesty-in-Council remains unimpeachable.

The appellants were impleaded as respondents in the appeal before His Majesty-in-Council and it was their duty to urge before His Majesty-in-Council to absolve them from the liability of the decree of the Subordinate Judge upon the ground that it was barred by limitation. That decree was challenged in appeal by Defendants Nos. 1 and 3; in that appeal the present appellants were also impleaded as parties and were made respondents. The plaintiff preferred cross-objection to the decree and prayed that the entire claim should have been decreed against all the defendants and that the Subordinate Judge was wrong in modifying the claim and reducing the same.

In this way the whole suit of the plaintiff was involved in the appeal. The plaintiffs did not accept the decree of the Subordinate Judge as a final decree and therefore were not bound to enforce it. They wanted their whole claim and until that was determined in the appeal in the High Court of Calcutta they were not at all required to execute the decree in question.

I have already briefly set out the scope of the suit and the point involved in the appeal in the High Court. The entire suit was based upon an Ekrarnamah or certain dealings which the plaintiffs alleged were binding upon all the defendants as members of a joint Mitakshara family. The foundation of the liability of the defendants was common, though the extent of their liability might have been different, and in the appeal the foundation of the plaintiff''s claim was involved.

That was the scope of the appeal, and the result confirms the view; for upon the hearing of the appeal their Lordships of the Calcutta High Court did not confine themselves to the decree passed against Defendants Nos. 1 and 3, but dismissed the entire claim of the plaintiff. This, to my mind, arose upon the particular facts of the case and upon the appeal and the cross-appeal before the High Court and upon the fact that all the contending parties were before the court either as appellants or as respondents. Therefore, as a matter of fact the whole decree was before the court and the finality of it was not determined until the appeal was disposed of. Apart from this the High Court had full seizin of the appeal and under Order 41, Rule 33 of the Civil Procedure Code, it had full power to pass such decree, in favour of all or any of the respondents or parties whether they were actually before the Court or not, as the justice of the case required. This provision in the Code is new, but it has given effect to the principles from time to time enunciated by learned Judges in dealing with cases that came before them where they found that it was their incumbent duty as a Court of appeal to do full justice to the case and to the parties involved in the case whether all of them were before the Court or not.

Therefore the plaintiffs were not required to execute the decree before it became final; in other words, before the appeal in the High Court was determined. After the High Court of Calcutta dismissed the appeal, the plaintiffs had no decree in their favour to execute until His Majesty-in-Council upheld their claim.

The learned Counsel on behalf of the appellants has cited a number of authorities in support of the proposition that the Subordinate Judge''s decree against the present appellants could be executed inasmuch as their liabilities under the decree were specified: Ganga Kuar v. Kesar Kuar [1904] 1 A.L.J. 409, Mashiat-un-nissa v. Rani [1889] 13 All. 1, Raghunath Prasad v. Abdul Hye [1886] 14 Cal. 26, Christiana Benshawn v. Benarashi Prasad Chowdhury 19 C.W.N. 287, and Dhirendra Nath Sarkar and others v. Nischintapur Company 22 C.W.N. 192.

The earliest case of Allahabad was Mashiat-un nissa v. Rani [1889] 13 All. 1 in which two learned Judges (Brodhurst and Mahmood, JJ.) took a different view. The other case reported in Ganga Kuar v. Kesar Kuar [1904] 1 A.L.J. 409, was a decision by Knox, J. who, while he felt that there was a sharp difference of opinion upon the question thought that ho was bound by the decision, in Mashiat-un-nissa v. Rani [1889] 13 All. 1. He does not give any reason of his own to support his view. On the other hand, a Division Bench of the same Court in Badi-un-nissa v. Shamsuddin (1895) 17 All. 103, distinguished those cases upon the ground that all the parties were not impleaded in the appeal in those cases. Sir John Edge, C.J., referring to these cases says:

But in these cases all the parties to the suit were not parties to the various appeals from the decree in the suit.

In the case decided by Sir John Edge, C.J., the decrees passed in favour of the plaintiff in respect of the pre-emption with respect to two of the villages were no longer involved in the subsequent appeals up to the High Court by the plaintiff with respect to two other villages; yet it was held that the execution to enforce the decree with respect to the first two villages was not barred, inasmuch as the decree did not become final until the appellate decree of the High Court was passed. This case is indistinguishable from the present one and the learned Counsel for the appellants concedes that. The case of Raghunath Prasad v. Abdul Hye [1886] 14 Cal. 26 was distinguished, if not overruled, in the Full Bench case of Gopal Chunder Manna v. Gosain Das Kalay [1898] 25 Cal. 594. The case of Christiana v. Benarshi Prasad Chowdhury 19 C.W.N. 287, was similarly distinguished in Satish Chandra Chowdhury v. Girish Chandra Chakravarty [1920] 47 Cal. 813.

The case of Kristnama Chariar v. Mangammal [1902] 26 Mad. 91, dealt with all the cases, and upon a review of them and of the law on the subject distinctly came to the conclusion that a decree is not barred even with respect to the portion against which no appeal had been referred until the appeal against the other portion of the decree is finally determined.

The Full Bench cases of Gopal Chander Manna v. Gosain Das Kalay [1898] 25 Cal. 594 and Kristnama Chariar v. Mangammal [1902] 26 Mad. 91, were based under Article 179 of the old Limitation Act, but shortly before the present Limitation Act was passed in 1908, and most of the reasonings advanced there would seem to anticipate the law as at present stands embodied in the new CPC and the Limitation Act both of which were passed in the year 1908. Rule 33 of Order 41, of the new Code, as observed above, enables the appellate Court to deal with the entire decree although the appeal may be as to a part of the decree, and also to give direction in favour of parties who have actually not filed any appeal or objection. In this way under the present CPC in an appeal from a part of the decree by some of the parties the entire decree becomes the subject-matter of the appeal. Article 182, Clause (2):

the date of the final decree or order of the appellate Court, or the withdrawal of the appeal

would seem to apply where there has been an appeal from a part or whole of the decree or only when some of the parties to the suit have brought the appeal. It does not in any way qualify or restrict the final decree or order as is sought for by the appellants. The case of Ranjit Prasad Tewari v. Ramjatan Pandey [1917] 1 Pat. L.W. 197, will to some extent also support the view.

It would thus appear that the plaintiff''s right to execute the decree is not at all barred.

The view taken by the learned Subordinate Judge is therefore correct and we dismiss the appeal with costs.

Kulwant Sahay, J.

I agree,