1. The questions referred to the full bench are as follows:-
Where one creditor M has obtained a money decree against H and his two undivided sons, and another creditor S has also obtained a money decree against H alone but not against his sons, and assets are realized by the attachment and sale of the joint family property of H and his sons in execution of M's decree,
(1) is S entitled to a rateable distribution in the assets under Section 73 of the Civil Procedure Code, and (2) if so, is only H's share in the assets liable to rateable distribution, or are the entire assets liable to be distributed rateably (a) when S's decree is passed against H as the manager of the joint family or (6) when H's sons are under a pious obligation to pay off their father's debts
The first question has to be decided by reference to the provisions of Section 73 of the Code of Civil Procedure and the answer to it depends upon the construction of the words 'decrees for the payment of money passed against the same judgment-debtor' which occur in that section. The said section deals with the rateable distribution of the assets held by a Court in execution proceedings and it provides that such rateable distribution shall be made where more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof. The word 'judgment-debtor' has been denned by Section 2(10) of the Code as meaning 'any person against whom a decree has been passed or an order capable of execution has been made.' Where two or more creditors have obtained decrees for the payment of money against the same identical judgment-debtor, their claims for rateable distribution obviously attract Section 73. It is true that the section speaks of a decree passed against the same judgment-debtor; but it has never been suggested that the section will not apply where decrees are passed against more judgment-debtors than one. In such a ease also, if the several decrees are against more judgment-debtors than one, and these judgment-debtors are in each case identical, Section 73 will obviously apply. Cases, however, often arise where some of the decree-holders have obtained money decrees against more judgment-debtors than one, and some others have obtained similar decrees against one or more, but not all, out of the said judgment-debtors; the question as to whether in such cases the latter decree-holders are entitled to claim rateable distribution out of the assets realised in execution proceedings instituted by a decree-holder of the former class has given rise to conflicting decisions. If the section is literally construed, it may mean that if there is one judgment-debtor he should be the same judgment-debtor in all the decrees, and if there are more judgment-debtors than one they should similarly be the same in all decrees, before the said decrees could be said to have been 'passed against the same judgment-debtor'. If this strict literal interpretation of the material words is accepted, the answer to the first question referred to the Full Bench may have to be in the negative.
2. But this narrow eo nomine construction is obviously open to the objection that the identity of the judgment-debtor alone is not enough to attract Section 73. There is no doubt that before Section 73 can be applied, it must also be shown that the said identical judgment-debtor occupies the same legal character in all the decrees. This requirement as to the identity of the legal character which has to be satisfied before Section 73 could be applied cannot, strictly speaking, be introduced if the said narrow literal construction is put on the material words. To this extent at any rate this eo nomine construction of the words fails to carry out the real object of Section 73.
3. In the case of decrees passed against more judgment-debtors than one, if it is insisted that all the judgment-debtors must be the same before Section 73 can. be applied, it would lead to the somewhat illogical result that a decree passed against A and B cannot be said to be a decree passed against the same judgment-debtors as that against A, B and C for the reason that judgment-debtor C is not a party judgment-debtor to it. Both the decrees are against A and B, and to that extent there should prima facie be no difficulty in treating them as passed against the same judgment-debtors. It seems to me that it is possible to hold, without doing violence to the language of Section 73, that in the case of decrees passed against more judgment-debtors than one it may be said that they are decrees passed against the same judgment-debtors even if amongst the different sets of judgment-debtors one or more, but not all, are identical. In such cases Section 73 may legitimately be applied, though it may be that in deciding the actual details of rateable distribution some complicated inquiries may become necessary. In this connection it may perhaps be permissible to note that Clause (c) to the proviso to Section 73 which deals with the rateable distribution of the proceeds of sale falling under that clause refers to 'holders of decrees for the payment of money against the judgment-debtor' and not against the same judgment-debtor.
4. Besides, the strict literal construction which insists upon the identity of all the judgment-debtors would clearly tend to defeat the very object with which Section 73 was enacted. Under Section 270 of the Code of 1859 the creditor who first attached property had a prior claim to have his decree satisfied out of the sale proceeds to the exclusion of other creditors. In the Code of 1882 the provisions of Section 295 were first introduced with a view to adjust the claims of rival decree-holders without the necessity of separate execution proceedings. The object of this provision obviously was to consolidate such execution proceedings in a way, so as to provide for a cheap and expeditious remedy for the execution of money decrees held against the same judgment-debtor. In that sense the section can be said to provide for an equitable administration of the property of the judgment-debtor and the said object is sought to be achieved by placing, subject to certain conditions, all decree-holders against the same judgment-debtor on the same footing and making the said judgment-debtor's property rateably divisible amongst them. If the narrow literal construction of the words 'passed against the same judgment-debtor' is accepted, creditors who have obtained decrees against two judgment-debtors may have to be denied the right to claim rateable distribution from the assets realised by sale of the property belonging to their judgment-debtors solely on the ground that the decree in whose execution the said assets were realized was passed against the said judgment-debtors and some others.
5. This being the position, the question for decision is which of the two possible constructions should be accepted. Having regard to the object with which Section 73 was enacted and having regard to the very unreasonable consequences to which the narrow eo nomine construction would necessarily lead, I feel disposed to hold that a more liberal, though perhaps less literal, construction of the material words should be adopted. In this connection it would be legitimate, to derive assistance from the well-known rules of construction. Maxwell in his 'Interpretation of Statutes', 8th edn.,. 61 says:
It is the ' duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words '.
Similarly in Broom's Legal Maxims (p. 150) it is stated that
Unless it is very clear that violence would be done to the language of the Act by adopting any other construction, any great inconvenience which might result from that suggested may certainly afford fair ground for supposing that it could not be what was contemplated by the legislature, and will warrant the Court in looking for some other interpretation.
The same rule has been thus stated by their Lordships of the Privy Council in Shannon Realities v. St. Michel (Ville de) (1924] A. C. 185 :-
Where the words of a statute are clear they must, of course, be followed; but, in their Lordships' opinion, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating.
Therefore, reading the section as a whole by itself, apart from authorities, it seems to me that in case of decrees passed against more judgment-debtors than one the words 'against the same judgment-debtor' in Section 73 cannot be said to require the identity of all judgment-debtors, and that even if one or more of such judgment-debtors are common, the said section would apply.
6. Let me now proceed to examine some of the decisions bearing on this point. In Nimbaji Tulsiram v. Vadia Venkati I.L.R(1892) . 16 Bom. 683 Mr. Justice Farran, sitting alone, considered the scope of Section 295 of the Code of 1882 (corresponding to present Section 73) by taking the hypothetical case of two decree-holders, one of whom had obtained a decree against A, B and C and the other against A alone. He held that it was plain that 'if the property realized was the joint property of A, B and C, the decree-holder holding a decree against A alone is not entitled' to participate in the proceeds of property realized in execution of the decree obtained against A, B and C, since his decree is not against the same persons. According to Mr. Justice Farran (p. 687) :
If the property realized was the property of A alone, the decree-holder holding a decree against A alone is entitled to participate therein, for his decree is against the same person as the holder of a decree against A, B, and C holds a decree against, inasmuch as the latter decree, in addition to being a joint decree against A, B and C, is also, as I have said, a separate decree against A alone.
This construction of the section did not find favour with a Division Bench of this Court in Chhotalal v. Nabilhai 7 Bom. L.R. 567. In that case there were three decree-holders, two of whom had obtained decrees against three identical judgment-debtors and the third against one of them. It was held by Jenkins C.J. (P- 329):
Though there may be in certain circumstances a practical difficulty in giving effect to that view without complicated inquiries, still we think it right for the sake of uniformity to follow the decision of the Full Bench of the Calcutta High Court in Gonesh Das Bagria v. Shiva Lakshman Bhakat (1908) I.L.R. 80 Cal. 583 which has been recently approved by the Allahabad High Court in Gatti Lal v. Bir Bahadur Singh I.L.R(1904) . All. 138 and is in accordance with the view of the Madras High Court, see Ramanathan Chettiar v. Suhramama Sastrial I.L.R(1902) . Mad. 179.
Referring to the judgment of Farran J. in Nimbaji Tulsiram v. Vadia Venkatti Jenkins C. J. held that as it was a decision of a single Judge it was not binding upon them as a Bench and that 'out of deference to the concordant opinions of the other High Courts they would decline to follow that decision'. On that view the case was remanded to the trial Court for making an order as to rateable distribution in the light of the remarks made in the judgment. It is clear that the trial Court was directed to ascertain the quantum of the assets from which rateable distribution should be awarded to the decree-holders against one of the said three judgment-debtors. It may be mentioned that the facts in Chhotalal v. Rabibhai were somewhat similar to the facts mentioned in question No. 1 referred to the Full Bench in the present case. It is true that the decrees in that case were apparently passed against three persons who were not related to each other; but the question as to whether for the application of Section 295 it was necessary that all the judgment-debtors should be the same arose for decision, and, as I have already mentioned, the authority of the view of Sir Lawrence Jenkins is in favour of the somewhat liberal construction which permitted the said section to be applied even if some, but not all, of the judgment-debtors are the same. It may be mentioned that the material words used both in Section 295 of the Code of 1882 and Section 73 of the present Code are substantially the same.
7. The decision in Gonesh Das Bagria, v. Shiva Lakshmam, Bhakat I.L.R(1903) . Cal. 583 to which Jenkins C. J. referred with approval in Chhotalal v. Nabibhai, dealt with a similar case. In that case B had obtained a decree against three judgment-debtors X, Y and Z, while A had obtained a decree against X and Y only. It was held that
A is entitled under the provisions of Section 293 of the Code of Civil Procedure to a proportionate distribution of the assets realized by the sale of a property of X, Y and Z, so far as they represent the share of his own judgment-debtors X and Y in that property.
In his referring judgment Maclean C. J. observed (p. 585):
But looking at the whole of section 295, and especially to that portion of it which deals with the distribution of the assets, where it speaks of ' the judgment-debtor ', not using the expression ' the same judgment-debtor', and to the equitable distribution which is aimed at by the section, I am disposed to think that the construction put upon it by the case of Deboki Nundun Sen v. Hart I.L.R.(1885) Cal. 294 is too narrow.
The decisions in Bamanathan Chettiar v. Subramania Sastrial and Gatti Lal v. Bir Bahadur Singh are to the same effect. The facts in Bamanathan Chettiar v. Subramania Sastrial were identical with those contemplated in question No. 1 submitted to the Full Bench in the present case, and the decision in the said case provides answers to both the questions referred to the Full Bench in this case. The decree of one of the judgment-creditors in that ease was against a father, while the decree of the other judgment-creditor was against the father and his son; the properties from whose sale the assets had been realised were the ancestral properties of the family of which the father and the son were undivided members. It was held that the decrees were 'against the same judgment-debtor' for the purposes of Section 295 and that the decree-holder against the father alone was entitled to rateable distribution from the assets realised by sale of the joint family property. These three decisions to which Jenkins C. J. referred are still good law so far as the three respective High Courts are concerned.
8. In Bombay, however, a somewhat contrary view of the provisions of Section 73 apparently found favour in Laxman Anant v. Govind Bambhai : (1941)43BOMLR695 . The Court was there dealing with the claims for rateable distribution advanced by thirteen decree-holders. Another decree-holder, Laxman, who had obtained a decree against the father Ramkrishna and his son Venkatesh, had brought to sale the property of his debtors and it was in the assets thus realized that the other thirteen decree-holders had made a claim for rateable distribution. Out of these claimants for rateable distribution, only one had obtained a decree against the father and his son, while all others had obtained their respective decrees against the father alone. The learned trial Judge had allowed the claim of the thirteen decree-holders for rateable distribution since in his opinion the father, who was a common judgment-debtor in all decrees, was the manager of the family and his son Venkatesh was bound by the decrees obtained against his father. 'When the matter came before this Court in revision, Beaumont C. J. held that, (p. 698), 'on the true construction of Section 73 it cannot be said that a decree against a father and a decree against a father and son are decrees against the same judgment-debtor'. Even so, the learned Chief Justice proceeded to observe that (p. 698) :
It is admitted that so far as the father is concerned, he being a common debtor under both decrees rateable distribution can be claimed. But as against the son it seems to me that rateable distribution cannot be claimed, because the two decrees are not so far as he is concerned, against the some debtor.
Thus the actual decision was that the claim made by the twelve decree-holders for rateable distribution would be allowed in so far as the assets of the father were concerned. With respect, it seems to me that it is somewhat difficult to reconcile this decision with the view that Section 73 did not apply. If Section 73 did not apply, there would be no justification for making any order as to rateable distribution at all. Besides, it appears that the decision in Chhotalal v. Nalibhad was not then cited before the Court. Beaumont C. J. mentioned the fact that Section 73 had given rise to conflicting decisions and referred to another point which frequently arises under Section 73 and on which judicial opinion is sharply divided. The question as to whether a decree passed against a man in his lifetime and that passed against his personal representative after his death could be said to have been passed against the same judgment-debtor has been answered differently by different Courts. In that connection Beaumont G. J. referred to the decisions of this Court in Govind Abaji Jahhadi v. Mohoniraj Vinayak Jakhadi (1901) I.L.R. 25 Bom. 404 and Chunilal v. Broach Urban Co-op. Bank, Ltd. (1987) 39 Bom. L.R. 815 and pointed out (that '' so far as that point is concerned, we are bound by the decisions of this Court, which could only be dissented from by a Full Bench'. Beaumont C. J. observed that that point was not by any means the same as the one with which he was concerned, and he then proceeded to answer the point which arose before him. Under these circumstances it is somewhat unfortunate that the decision in Chhotalal v. Nabihhai was not cited before the Court at that time.
9. In adopting the literal construction of Section 73, Beaumont C. J. took the view that the; alternative construction really incorporated (p. 698) 'into the construction of Section 73 principles peculiar to Hindu law, because it is only where the defendants, father and son, are members of a joint Hindu family, that they can be regarded as the same judgment-debtor'. He also thought that the said construction (p. 698) 'may very well deprive the son of his right to claim that the debt, the subject of the decree against his father, was one incurred by the father for immoral purposes, and is, therefore, not binding upon him'. With all respect it seems to me that the alternative construction does not incorporate principles peculiar to Hindu law, since the said construction would apply to all judgment-debtors irrespective of the personal law to which they may be subject. The said construction merely implies that in case of decrees passed against several judgment-debtors claims for rateable distribution by such of the decree-holders as hold decrees against some, though not all, of the said judgment-debtors have to be recognised. The details of rateable distribution may raise some complicated questions to be decided; but on the said construction, the application of Section 73 will not depend in any sense upon the personal law of the judgment-debtors concerned. Similarly, the apprehension expressed by Beaumont C. J. that on this interpretation Hindu sons may be deprived of their right to challenge the binding character of the decree passed against their father also seems to me to be unjustified. In cases where a decree-holder against the father alone seeks to claim rateable distribution in the assets held by a Court and where such assets have been realised at the instance of another decree-holder whose decree has been passed against the father and his sons, his claim may be granted on the ground that under both decrees the father is a common, and therefore the same, judgment-debtor. But that does not mean that in assessing the quantum of the assets from which such a decree-holder will get his proportionate share the Court may not be able to consider the plea raised by the sons that the decretal debt against their father is not binding on them. If such a decree-holder against the father alone contends that he is entitled to a rateable distribution in all the assets realized by the sale of the property belonging to the family consisting of the father and sons on the ground that the decretal debt is binding upon the sons, the sons or as a matter of that the rival decree-holders who have obtained decrees against the sons along with the father, may resist that claim by pleading that the decretal debt does not bind the sons. Once an order is made under Section 73 the actual rateable distribution of the assets which the section makes obligatory will depend upon the determination of other subsidiary questions which may arise and which may have to be decided under Section 47 of the Code of Civil Procedure. In fact questions of this type often arise in execution proceedings and it would not be surprising if as a result of an order made under Section 73 the Court has to answer them before making a final adjustment as to the amounts to be rateably distributed amongst the several decree-holders. That was, I think, precisely what Jenkins C. J. meant when he said that '' there may be in certain circumstances a practical difficulty in giving effect to that view without complicated inquiries'. I, therefore, think that the view adopted by Jenkins C. J. in Chhotalal v. Nahihhai should be preferred to the opinion expressed by Beaumont C. J. in this case.
10. It is true that the orders passed under Section 73 are not final and can be challenged in a separate suit. Section 73(2) provides for such a suit which any person '' entitled to rateable distribution'' may file for a refund of the assets which may have been paid to another not legally 'entitled to receive the same'. In this respect the orders passed under Section 47 differ since these orders are final and conclusive as between the parties to the proceedings under that section. It is obvious that all persons between whom questions as to rateable distribution arise are not parties to the same suit and in that sense Section 47 is not strictly and technically applicable to the orders passed under Section 73. That, however, does not mean that the said 'complicated' questions cannot be raised and decided in proceedings under Section 73.
11. For these reasons I would answer the first question in the affirmative.
12. The second question has to be decided under Section 73 read with Section 47 of the Code of Civil Procedure. Once it is held that a decree-holder who has obtained a decree against the father alone can be said to have obtained a decree against the same judgment-debtor as the other creditor who has obtained a decree against the father and his two undivided sons, an appropriate order would be passed holding that he it entitled to rateable distribution, But the amount to which he is entitled may still have to be determined and in ascertaining the said amount complications of the type contemplated by question No. 2 will arise. In fact it is not unusual for a decree-holder against the father alone to apply for the execution of his decree by sale of the property belonging to the joint family on the ground that the father was the manager of the family and as such the decree against him is binding on the shares of all the coparceners in the property belonging to the family; similarly such a decree-holder can and often does seek to hold the shares of the sons in the joint family property bound by the decree on the ground that there is a pious obligation on the sons under Hindu law to pay their father's debts. In the latter case it is open to the sons to resist the claim of the decree-holder by showing that the debt for which the decree in question was passed was illegal or immoral and that their share in the joint family property would not be liable for the payment of such a debt. When an order under Section 73 is passed in favour of a decree-holder against the father, he would be entitled to claim rateable distribution in the assets realised by the father's share in the property without any difficulty. If he seeks to make a claim in the whole of the assets on the ground that the said assets are answerable for the debt of his judgment-debtor, his claim may have to be examined just as it would have to be examined if it had been made in a darkhast filed by him. In other words the quantum of the assets from which such a decree-holder would, in any given case, be entitled to claim rateable distribution will have to be decided in the light of the conclusion to which the. Court may arrive on the respective contentions of the parties in that behalf. It is true that Section 73 makes it obligatory upon the Court to distribute rateably the assets held by it amongst all decree-holders falling under that section, but the final orders as to such rateable distribution may have to be passed in such cases after subsidiary issues such as the quantum of the assets of the respective judgment-debtors are decided. Under Hindu law the manager can sue and be sued alone and the decree properly passed in such suits against him binds all the coparceners of the family. Similarly, Hindu law imposes upon the sons a pious obligation to pay the debts of their father unless the said debts are either immoral or illegal. That being the position, if a decree-holder has obtained a decree against a Hindu father and if he is held entitled to an order for rateable distribution under Section 73, it would follow that he would be entitled to such rateable distribution not only in the share of the father in the assets held by the Court, but in the entire assets, either when the decree was obtained against the father as the manager of the family or when it was obtained against him individually for debts which his sons were bound to pay under the doctrine of pious obligation. That being my view, I would answer both parts (a) and (b) of question No. 2 in the affirmative. In deciding the rival decree-holders' claims for rateable distribution in Laxman Anant v. Govind Rambhat (1941) 48 Bom. L.R. 693 Beaumont C. J. was prepared to assume that the decrees against the father alone were passed against him as the manager of the joint Hindu family (p. 697); the property sold in execution proceedings was found to be the property of the joint family of the father and his son. Thus the facts in that case were identical with those assumed in question 2(a). Since I have answered the said question 2(a) in the affirmative, I am disposed to think that the opponents in that case who had obtained decrees against the father alone were entitled to rateable distribution in all the assets held by the. Court.
13. While referring to the decision in Laxman Anant v. Govind Rambhat, I have cited the observations of Beaumont C. J. in regard to another question which often arises under Section 73; that question relates to cases where decrees are passed I against the same person during his lifetime and against his personal representative after his death. In regard to that question the view which this Court 'took in Govind Abaji Jakhadi v. Mohoniraj Vinayak Jahhadi 8 Bom. L.R. 407 has not so far been dissented from. On the contrary, it has been affirmed in Chunilal v. J Broach Urban Co-op, Bank, Ltd. : AIR1937Bom461 , In his referring judgment Mr. Justice I Lokur has also mentioned this point and has pointed out that the view of this Court has been dissented from in Calcutta, Madras, Allahabad and Lahore. , In that connection Mr. Justice Lokur has indicated that he would be inclined to construe the words 'passed against the same judgment-debtor' in Section 73 'as referring more to the property which a judgment-debtor represents than to the person against whom execution has been sought'. I think it is necessary to state that this question has not been referred to the Full Bench in the present case and it is, therefore, not necessary for me to express any opinion on it.
14. I agree.
15. I agree.