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Dundappa Virupaxappa Kallolgi and ors. Vs. Annaji Vardaji and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal Nos. 201 and 202 of 1947
Judge
Reported inAIR1953Bom65; (1952)54BOMLR811; ILR1953Bom15
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(10), 50, 52, 73, 73(2) and 295; Code of Civil Procedure (CPC), 1882
AppellantDundappa Virupaxappa Kallolgi and ors.
RespondentAnnaji Vardaji and ors.
Appellant AdvocateS.R. Parulekar and ;H.F.M. Reddy, Advs.
Respondent AdvocateG.P. Murdeshwar, ;U.S. Hattyangadi and ;B.M. Kalagate, Advs.
Excerpt:
.....decree-holders--decree against judgment-debtor sought to be executed after his death against his legal representatives--decree against legal representatives of judgment-debtor in suit filed against judgment-debtor in his lifetime--decree against legal representatives of judgment-debtor in suit filed against judgment-debtor after his death--whether such decrees ' passed against the same judgment-debtor '--construction.;a decree passed against the judgment-debtor and sought to be executed against his legal representatives after his death and another decree obtained against the judgment-debtor's legal representatives in a suit filed against the judgment-debtor during his life-time but continued against his legal representatives after his death, can be said to have been passed against the..........filed suits against him during his life-time but during the pendency of these suits he died. his legal representatives were brought on record of these suits and decrees were ultimately passed in favour of defendants 1 to 5 against defendants 12 to 15 who were the legal representatives of the deceased mudlingangouda limited to the extent of the assets of mudlingangouda come to their hands. defendants 6 and 7 filed their suits after the death of mudlingangouda against the legal representatives of mudlingangouda and they also obtained money decrees against the legal representatives of mudlingangouda limited of course to the extent of the assets of mudlingangouda come to their hands. there were thus decrees passed against mudlingangouda during his life-time in favour of plaintiffs l to 4.....
Judgment:
ORDER

Bhagwati, J.

(1) These are two second appeals against the decision of the learned Assistant Judge, Dharwar, dismissing the appeals and confirming the decrees passed by the learned Civil Judge (J. D.) at Gadag.

(2) One Mudlingangouda was indebted to various parties. Plaintiffs 1 to 4 and defendant 11 filed suits against him and obtained money decrees against him during his life-time. Defendants 1 to 5 also filed suits against him during his life-time but during the pendency of these suits he died. His legal representatives were brought on record of these suits and decrees were ultimately passed in favour of defendants 1 to 5 against defendants 12 to 15 who were the legal representatives of the deceased Mudlingangouda limited to the extent of the assets of Mudlingangouda come to their hands. Defendants 6 and 7 filed their suits after the death of Mudlingangouda against the legal representatives of Mudlingangouda and they also obtained money decrees against the legal representatives of Mudlingangouda limited of course to the extent of the assets of Mudlingangouda come to their hands. There were thus decrees passed against Mudlingangouda during his life-time in favour of plaintiffs l to 4 and defendant 11. There were decrees passed against his legal representatives in suits which were instituted against him during his life-time but in which the legal representatives were brought on the record on his death pending the disposal of those suits ;n favour of defendants 1 to 5, and there were decrees passed against the legal representatives of the deceased Mudlingangouda in suits which were instituted after his death only against his legal representatives in favour of defendants 6 and 7. Thirteen darkhasts were filed against the legal representatives of the deceased Mudlingangouda and in the darkhast which was filed at the instance of plaintiffs 1 to 4, assets to the extent of Rs. 6,425 were realised and were in the custody of the executing Court. Defendants 1 to 5 and defendants 6 and 7 applied for rateable distribution of these assets under Section 73, Civil Procedure Code on October 13, 1937. The executing Court passed an order for rateable distribution in favour of all these applicants. In accordance with the terms of this order payments were made to the respective parties on October 18 and 19, 1937. On October 18, 1940, the plaintiffs filed the suit out of which these appeals have arisen making defendant 11 also a party-defendant to the suit claiming a refund of the amounts which had been obtained on rateable distribution by defendants 1 to 5 and 6 and 7, contending that the decrees which were passed in their favour were against Mudlingangouda himself but the decrees which were passed in favour of defendants 1 to 5 and 6 and 7 were passed against the legal representatives of the deceased Mudlingangouda, with the result that these decrees could not be said to have been 'passed against the same judgment-debtor' within the meaning of the expression as used in Section 73, Civil P.C. It may be noted that defendant 2 had transferred his decree in favour of defendant 9, defendant 10 was the owner of defendant 5's shop and defendant 8 had been transposed as plaintiff 4. Defendants 12 to 15 were made party-defendants to the suit in their capacity as the legal representatives of the deceased Mudlingangouda and they were impleaded as party defendants in so far as they might be affected by the order ultimately passed by the Court in the suit.

(3) On July 6, 1943, the trial Court at Gadag passed a decree in favour of the plaintiffs holding that the decrees against Mudlingangouda and the decrees passed against the legal representatives of Mudlingangouda could not be said to have been passed against the same judgment-debtor. This decision was taken to appeal and the learned Assistant Judge at Dharwar, who heard the appeal, following the decisions of this Court in -- 'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co.-op. Bank. Ltd.', 39 Bom L R 815 dismissed the appeal and confirmed the decree passed by the trial Court. In the judgment which he delivered, the learned Assistant Judge adverted to & decision of the full bench in -- 'Mulchand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) which was also a decision on the construction of Section 73, Civil P. C., but which referred not to the question which arose directly for decision by him but to the question whether the decree which was passed against A, B and C and the decree which was passed against A alone could be said to be decrees passed against the same judgment-debtor. The full bench there, in -- 'Mulchand Kesaji v. Shiddappa', put a liberal construction on the words 'the same judgment-debtor' used in Section 73, Civil P. C. and put great stress on the identity of property against which execution was sought rather than the identity of persons against whom decrees were passed 'eo nomine'. The learned Assistant Judge appeared to have thought that though such liberal construction should as well have been put in the matter of the decrees which came for scrutiny before him, he was concluded by the two decisions of our High Court reported in the case of --'Govind v. Mohoniraj', and in the case of ---'Chunilal v. Broach Urban Co-op. Bank Ltd.', above referred to. He, therefore, dismissed the appeal and confirmed the order passed by the trial Court. These second appeals have been filed by defendants 1, 3, 4 and 9 and by defendant 6 against that decision of the learned Assistant Judge and have come on for hearing and final disposal before us.

(4) The decision of these second appeals turns on the construction to be put upon the words 'passed against the same judgment-debtor' in Section 73, Civil P. C. When a decree is passed against a person, it is necessarily passed against him 'eo nomine' though the decree may be passed against him personally or limited to the extent of the assets of a deceased person in his hands or to the extent of his interest in certain properties. It is none-the-less a decree passed against him and he would be the judgment-debtor against whom the decree has been passed. The definition of 'judgment-debtor' is contained in Section 2(10), Civil P. C. where 'judgment-debtor' is defined as any person against whom a decree has been passed or an order capable of execution has been made. This definition lays stress on the fact of the decree having been passed or the order capable of execution having been made against a person, and the definition has no relation whatever to the existence or otherwise of property which may be attached or realised in execution. If, therefore, strict regard be had to the wording of Section 73 and Section 2(10) Civil P. C. the only meaning which could be given, to these words 'passed against the same judgment-debtor' would be that the decree should be passed against a person who is described in the decree as the judgment-debtor. A decree can be passed, as observed above, against a, judgment-debtor personally or limited in the manner above stated. Nonetheless it would be a decree passed against that judgment-debtor: and the mode in which the execution of that decree can be obtained is a matter to be dealt with in execution and does not affect the question as to who is the person against whom the decree is passed or in other words who is-the judgment-debtor in the decree.

(5) This was the strict construction which was put upon these words 'passed against the same judgment-debtor' in the two cases which were decided by our High Court, -- 'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', 39 Bom LR 815. The facts of these cases were on all fours with the case before us and it was held that the decrees were not passed against the same judgment-debtor and therefore there was no question of rateable distribution amongst these several sets of decree-holders. When the case of -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', came to be decided the attention of the learned Judges was drawn to the fact that the Madras High Court in the full bench case of -- 'Rama Krishnan Chettiar v. Kasi Vishwanathan Chettiar', 59 Mad 93 (FB) had given a contrary decision and had held that a legal representative against whom a decree had been passed in respect of a deceased's estate and the deceased person against whom a decree was passed in his life-time but which was sought to be executed against his property in the hands of his legal representative could be described as 'the same judgment-debtor' within the meaning of Section 73, Civil P. C. In spite of the attention of the Court being drawn to that decision of the Madras High Court, the learned Judges preferred to follow the decision of our own Court in -- 'Govind v. Mohoniraj', particularly because the Code of Civil Procedure of 1882 was repealed and the present Code was enacted in 1908, seven years after that decision was pronounced by our appeal Court and yet Sir Lawrence Jenkins, who was himself a member of the special committee, did not think it necessary to make any change in the wording of Section 73, Civil P. C. This decision pronounced in the year 1937 has stood till date and if the principle of 'stare decisis' was applicable, we would be reluctant to disturb the even course of decisions. The principle of 'stare decisis', however, applies where the questions of title to immoveable property are concerned or where citizens have guided themselves by the particular position laid down in law to their detriment so that a reconsideration of the decision would work great prejudice to them. When questions of distribution of assets come up before the Courts, there is no such inherent disability which would deter the Court from, if necessary, disturbing what till then has been understood to be the position in law. We are, therefore, not inclined to apply the principle of 'stare decisis' to the present position in regard to the construction-of the words 'passed against the same judgment-debtor.'

(6) On a construction of these words 'passed against the same judgment-debtor' used in Section 73, Civil P. C., there was another series of authorities obtaining in our Court where the question arose in regard to decrees passed against A, B and C and decrees passed against A only, A being a common judgment-debtor in those decrees. In -- 'Chhotalal v. Nabibhai', 29 Bom 528 a division bench of this Court, of which Sir Lawrence Jenkins himself was a member, held that Section 295, Civil P. C. (which is the same as Section 73, Civil P. C. of 1908) governed where the first decree was against three judgment-debtors and the decree on which the petitioner relied was against one of those three. Reliance was placed on the decision of the full bench of the Calcutta High Court in -- 'Gonesh Das v. Shiva Lakshman', 30 Cal 583 (FB) which had been recently approved by the Allahabad High Court in -- 'Gatti Lal v. Bir Bahadur', 27 All 158 and was in accord with the view of the Madras High Court in -- 'Ramanathan Chettiar v. Subramania Sastrial', 26 Mad 179. Even though a different view had been adopted in -- 'Nimbaji Tulsiram v. Vadia Venkati', 16 Bom 683, that view did not find favour with the learned Chief Justice as it was a decision of a single Judge and was not binding on the division bench and the learned Judges declined to follow that decision out of deference to the concordance of opinions of the other High Courts as above mentioned. A contrary view was, however, adopted by Beaumont C. J. in -- 'Laxman Anant v. Govind Rambhat', 43 Bom L R 695 and it was held that on a true construction of Section 73 that it could not be said that a decree against the father and a decree against the father and the son were decrees against the same judgment-debtor. It appears that the decision in -- 'Chhotalal v. Nabibhai'. was not cited before Beaumont C. J. None-the-less these two decisions were reached by different division benches of our High Court and this conflict had therefore to be resolved when a similar question cropped up before Mr. Justice Lokur and Mr. Justice Weston on February 28, 1945. In view of this conflict of decisions a reference was made to a full bench of this Court and -- the questions which were referred to the full bench in -- 'Mulchand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) were (p. 576):

'Where one creditor M has obtained a money decree against H and his two undivided sons, and another creditor 5 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 5 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 (b) when H's sons are under a pious obligation to pay off their father's debts?'

In the referring judgment Mr. Justice Lokur observed (p. 573):

'.....We prefer to take the same view not merely on the ground of uniformity or 'stare decisis', but we are of opinion that the expression 'passed against the same judgment- debtor' ought to be liberally construed. The object of Section 73 being to provide for rateable distribution of assets upon which two or more decree-holders have equal claims, the words 'passed against the same judgment-debtor' must be interpreted as referring more to the property which a judgment-debtor represents than to the person against whom execution has been sought.'

This ratio was in effect adopted by the full bench in the judgment delivered by Mr. Justice Gajendragadkar. The learned Judge discussed the various authorities which were cited before the full bench and referred also to Maxwell, on Interpretation of Statutes and Brooms Legal Maxims and to a decision of their Lordships of the Privy Council in -- 'Shannon Realties Ltd. v. St. Michel (Ville de)', (1924) A C 185 and observed (p. 578):

'.....Therefore, reading the section as 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.'

The learned Judge further observed (p. 578):

'.....Having regard to the object with whichSection 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.'

Having adopted that canon of construction the learned Judges of the full bench followed --'ChhotalaI v. Nabibhai', in preference to the opinion expressed by Beaumont C. J. in --'Laxman Anant v. Govind Rambhat'. Towards the end of that judgment, however, it was further observed as under (p. 582):

'While referring to the decision in -- 'Lax-man Anant v. Govind Rambhat', 43 Bom L R 695 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 against the same person during his life-time 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 Jakhadi', 25 Bom 494 has not so far been dissented from. On the contrary, it has been affirmed in -- Chunilal v. Broach Urban Co-op. Bank Ltd.', 39 Bom L R 815. In his referring judgment Mr. Justice 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.'

The matter, therefore, rested in the full bench not expressing any opinion on the question that has cropped up now for decision before us.

(7) It would be apposite at this stage to refer to certain observations of Strachey C. J. in --'Bithal Das v. Nand Kishore', 23 All 106 which were quoted with approval by the learned Judges of the Madras High Court in the full bench case of -- 'Rarna Krishnan Chettiar v. Kasi Vishwanathan Chettiar', (59 Mad 93 FB) (p. 110):

'.....the object of the section is two-fold. The first object is to prevent unnecessary multiplicity of execution proceedings, to obviate in a case where there are many decree-holders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately selling that property. The other object is to secure an equitable administration of the property by placing all the decree-holders in the position I have described upon the same footing, and making the property rateably divisible among them, instead of allowing one to exclude all the others merely because he happened to be the first who had attached and sold the property.'

This ratio is very appropriate. When a decree is passed against a deceased person in a suit instituted and prosecuted against him to judgment, his legal representatives would have to be brought on record before that decree against him could be executed. Section 50, Civil P. C. allows that to be done. It says that

'Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.'

The object of this provision, in the case where the decree was passed against the deceased person himself, is to realise the decretal amount out of the properties, if any. left by the deceased and come to the hands of the legal representatives. Where a decree is passed against the legal representatives of a deceased person not only where the suit was originally instituted against the deceased person but was continued against his legal representatives on his death, the cause of action surviving, but also where the suit was instituted after his death, only against his legal representatives, the decree can be executed against the legal representatives under Section 52, Civil P. C. Section 52 says that 'where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.' The object of execution, therefore, in both these cases either under Section 50 of the Code of Civil Procedure or under Section 52, Civil P. C. is to realise the decree whether passed against the deceased or passed against the legal representatives of the deceased out of the properties belonging to the deceased which have come to the hands of the legal representatives of the deceased. This being the object, it would be frustrated if a distinction of the type which found favour with the learned Judges in -- 'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', 39 Bom L, R 815 was held to be effective. No doubt on an 'eo nomine' construction of Section 73 and Section 2(10), Civil P. C. it would be possible to uphold the distinction. If, however, the liberal construction which was sought to be put upon these words 'passed against the same judgment-debtor' in -- 'Mul-chand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) was adopted, it would be possible to hold that all these decrees of the type mentioned above were passed against the same judgment-debtor and all the decree-holders would be entitled to come in and share in the rateable distribution of the assets.

(8) Besides the full bench decision of the Madras .High Court reported in -- 'Rama Krishnan Chettiar v. Kasi Vishwanathan Chettiar', 59 Mad 93 (F B) our attention was also drawn to a full bench decision of the Allahabad High Court reported in -- 'Hoti Lal v. Chatura Pra-sad', AIR 1941 All 110 (FB). Reliance was placed on behalf of the appellants on the judgment of the majority which upheld the liberal construction of the words 'passed against the same judgment-debtor' in Section 73, Civil P. C. Mr. Murdeshwar, however, drew our attention to the minority judgment which upheld the view which has been so far adopted by our High Court in -- 'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', 39 Bom L R 815. The Calcutta High Court had also approved of the Bombay view in -- 'Hemendra Nath v. East Bengal Commercial Bank', 63 Cal 923 and --'Hemlata Dasi v. Bengal Coal Co. Ltd.', AIR 1935 Cal 738 and the Rangoon High Court had approved of it in -- 'Sarju Sukul v. Dubay', 1940 Rang. L R 492. The only other decision which we might refer to in this connection is the one reported in -- 'Sheo Charan Das v. Ram Saran Das', 24 Lah 497 which was also a decision of the full bench of that Court. We need not, however, go so far. It is sufficient to refer to the full bench decisions in -- 'Rama Krishnan Chettiar v. Kasi Vishwanathan Chettiar' and in -- 'Hoti Lal v. Chatura Prasad', and the Calcutta and Rangoon High Court decisions above set out. Untrammelled as we are by the principle of 'stare decisis' & having regard in particular to the full bench decisions of the Madras and Allahaba'd High Courts as also the observations which were made and the ratio which was adopted in our own full bench decision in -- 'Mulchand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) we feel that in spite of the tenor of the decisions of our High Court on the question which has cropped up before us, in -- 'Govind v. Mohoniraj' and -- 'Chunilal v. Broach Urban Co-op. Bank Ltd.', the question is of such an importance as to be canvassed by a full bench of this Court. We, therefore, refer the following questions for decision of a full bench:

'1. Whether a decree passed against M and sought to be executed against his legal representatives after his death and another decree obtained against M's legal representatives in a suit filed against M during his life-time but continued against his legal representatives after his death, can be said to have been passed against the same judgment-debtor within the meaning of Section 73 of the Code of Civil Procedure? 2. Whether a decree passed against M and sought to be executed against his legal representatives after his death and another decree passed against the legal representatives of M in a suit filed against the legal representatives after M's death can be said to have been passed against the same judgment-debtor within the meaning of Section 73, Civil P. C.?'


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