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Dhulesaheb Dawalsaheb Jambaji Vs. the Municipal Borough - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 110 of 1945
Judge
Reported inAIR1949Bom260; (1949)51BOMLR252
AppellantDhulesaheb Dawalsaheb Jambaji
RespondentThe Municipal Borough
DispositionAppeal allowed
Excerpt:
.....decree for costs of the two appeals against defendants nos. 2 and 3 could not be looked upon as a joint decree against all the defendants, that it was not open to the plaintiff to avail himself of the darkhast filed against defendant no. 1 on july 5, 1938, as that darkhast did not take effect against defendants nos. 2 and 3, and that, therefore, the darkhast filed on april 8, 1943, was barred by limitation.;nand lal saran v. dharam kirti sarari (1925) i.l.r. 48 all. 377 and charu chandra roy v. hrishikesh roy [1937] a.i.r. cal. 547 followed.;subramanya chettiar v. alagappa chettiar (1906) i.l.r. 30 mad. 268 dissented from. - - 3. for the purpose of this argument strong reliance is placed on a decision of the madras high court in svhramanya chettiar v. 2 and 3. therefore the present..........but the contention of mr. hungund for the respondent is that as the decree that was passed was a joint decree against all the defendants, the darkhast filed against defendant no. 1 only must take effect also against defendants nos, 2 and 3, and for this purpose reliance is placed on para. 2 of expln. i to article 182 of the indian limitation act. this paragraph deals with decrees which are severally passed against judgment-debtors and decrees which are passed jointly against judgment-debtors. with regard to decrees which are passed severally, the explanation provides that execution of such a decree against one of the judgment-debtors cannot take effect against the other judgment-debtors. with regard to joint decrees the provision is that an application for execution against one of the.....
Judgment:

M.C. Chagla, C.J.

1. This appeal arises out of execution proceedings, and a few facts may be stated in order to appreciate the contentions of the parties before us. It seems that the plaintiff as the decree-holder obtained a decree in Suit No. 264 of 1934 against defendant No. 1 and the suit against defendants Nos. 2 and 3 was dismissed. The plaintiff-Municipality appealed against the order of dismissal. On August 11, 1936, the learned District Judge allowed the appeal and awarded to the Municipality a decree against all the defendants. There was also a provision in the decree for the costs of the appeal and that provision was that the costs of the appeal were to be paid by defendants Nos. 2 and 3. The costs of the trial Court were made payable by all the defendants. On April 8, 1936, while the appeal before the District Court was pending, darkhast No. 298 of 1936 was filed by the Municipality to execute the decree of the trial Court against defendant No. 1, and on August 12, 1936, that darkhast was disposed of. From the judgment of the District Court defendants Nos. 2 and 3 preferred an appeal to this Court fend this Court dismissed the appeal with costs. While this appeal was pending before this Court, on July 5, 1938, the Municipality filed darkhast No. 474 of 1938 to execute the appellate decree passed in the appeal disposed of by the District Court. That darkhast was filed against defendant No. 1 only and in that darkhast the Municipality claimed the whole of the decretal amount, the costs of the trial Court and the costs of the appeal before the District Court. Obviously the Municipality was in the wrong in trying to execute the decree with regard to the costs of the appeal against defendant No. 1, and in the darkhast proceedings they withdrew that claim. On December 13, 1941, that darkhast was disposed of by defendant No. 1 paying the amount of the decree and also the costs of the trial Court. Then on April 8, 1943, the present darkhast, from which this appeal arises, was filed by the Municipality against defendant No. 2 to recover the costs of the two appeals. The executing Court took the view that the darkhast was barred by limitation and dismissed it. The learned District Judge came to the opposite conclusion and reversed the order of the trial Court.

2. Now, what the judgment-creditor is executing is the decree of this Court passed on December 6, 1938, and prima facie as the present darkhast is filed on April 8, 1943, the darkhast is barred by limitation. But the judgment-creditor seeks to avail itself of the darkhast filed on July 5, 1938, viz. darkhast No. 474 of 1938, and the short point that we have to consider is whether it is open to the Municipality to avail itself of that darkhast. That darkhast was only against defendant No. 1; it was not against defendants Nos. 2 and 3. But the contention of Mr. Hungund for the respondent is that as the decree that was passed was a joint decree against all the defendants, the darkhast filed against defendant No. 1 only must take effect also against defendants Nos, 2 and 3, and for this purpose reliance is placed on para. 2 of expln. I to Article 182 of the Indian Limitation Act. This paragraph deals with decrees which are severally passed against judgment-debtors and decrees which are passed jointly against judgment-debtors. With regard to decrees which are passed severally, the explanation provides that execution of such a decree against one of the judgment-debtors cannot take effect against the other judgment-debtors. With regard to joint decrees the provision is that an application for execution against one of the judgment-debtors would take effect against them all. Mr. Hungund's contention is that if there is a decree against more than one judgment-debtor, even though a portion of it may be against some and a portion of it may be against the others, it must be looked upon as a joint decree. It seems to me that this argument on the face of it is untenable and fallacious. There may be a decree containing various provisions; some provisions may be against all the judgment-debtors jointly; others may be provisions severally against some or other of the judgment-debtors. Merely because in a part of it the decree is joint against all the defendants, to say therefore that it is a joint decree is a proposition which, in my opinion, is unstatable and inarguable. According to Mr. Hungund, then, one can never have a decree which is partly joint and partly several. If it is partly joint, then the whole of it is joint and the second part of the explanation would apply to such a decree.

3. For the purpose of this argument strong reliance is placed on a decision of the Madras High Court in Svhramanya Chettiar v. Alagappa Chettiar I.L.R. (1906) Mad. 268. which is a judgment of a divisional bench, consisting of Sir Arnold White, Chief Justice, and Mr. Justice Miller. There the decree for mesne profits was only against defendants Nos. 1 and 2, and a joint decree for his costs against defendants Nos. 1, 2, 6 and 9, and the question was whether the application made for execution of the joint decree could take effect against all the defendants within the meaning of the Explanation to Article 182. The bench of the Madras High Court held that the second paragraph of the Explanation to Article 182 must be read literally, and they took the view that although part of the decree was joint in so far as it related to costs and part of the decree was several in so far as it related to mesne profits, still the decree must be looked upon as a joint decree. With very great respect, I am unable to agree with this view of the Madras High Court. It is difficult to understand why even a literal interpretation of the second paragraph of explanation to Article 182 should drive one to the conclusion to which the Madras High Court seems to have been driven. When the explanation speaks of a decree, it must include a decree or part of a decree or a portion of a decree, and putting that interpretation upon the second paragraph of the explanation it is easy to reconcile all difficulties and to come to a solution which is not illogical or anomalous. The Allahabad High Court has refused to follow the Madras High Court in its interpretation and has taken a contrary view. The case is reported in Nand Lal Saran v. Dharam Kirti Saran I.L.R. (1925) All. 377 and as that Court points out, the principle underlying the second paragraph of expln. I to Article 182 is that when a decree is being executed against A, B and C who are jointly liable under the decree and the application for execution is only against one of them, the judgment-creditor should not be barred from recovering the decretal amount if he fails to recover it from a particular judgment-debtor against whom he has applied for execution. But that principle would not apply in a case where a decree is partly joint and partly several.

4. The Calcutta High Court had also to consider the same question and it considered it in the case of Charu Chandra Boy v. Hrishikesh Roy A.I.R. [1037] Cal. 547 and the principle that Mr. Justice Mukherjea laid down was that the test that should be applied should be whether the separate relief given against a particular defendant is really a part of the joint decree passed against all the defendants. If it is so, then the execution of the joint decree would keep alive the separate relief also; but if it is in substance a separate decree, that principle would not apply. Now, applying that test here, it cannot be said that the decree for costs against defendants Nos. 2 and 3 is a part of the joint decree passed against all the defendants. This decree for costs has nothing whatever to do with the decree passed jointly against all the defendants which was for the decretal amount and the costs of the trial. Defendant No. 1 had nothing to do with the appeals. He was not a party either to the first appeal or to the second appeal, and it is difficult to see how it could possibly be contended that the decree for costs of the two appeals against defendants Nos. 2 and 3 must be looked upon as a joint decree against all the defendants. When the application for execution, Darkhast No. 474, was pending against defendant No. 1 with regard to the decretal amount and the costs of the trial Court, there was nothing to prevent the Municipality also applying for execution against defendant. Nos. 2 and 3 with regard to the costs of the appeals.

5. In our opinion, therefore, it is not open to the judgment-creditor to avail itself of Darkhast No. 474 and that darkhast cannot take effect against defendants Nos. 2 and 3. Therefore the present darkhast filed on April 8, 1943, is clearly barred by limitation. The result, therefore, will be that the appeal will be allowed with costs throughout.

Bhagwati, J.

6. I agree with the conclusion reached by My Lord the Chief Justice. I may, however, add that the principle is correctly laid down in the decision of the Allahabad High Court in Nand Lal Saran v. Dharam Kirti Saran I.L.R. (1925) All. 377 where the learned Judge observed :

The ease is different when certain portions of a decree are jointly passed and others severally passed against more persons than one. While a decree-holder is executing a joint portion of the decree against one of the joint judgment-debtors, there is nothing to prevent him from executing the other portions of the decree against the several judgment-debtors who are liable thereunder. It would be expected of a diligent decree-holder that he should do so. We think, therefore, that where a decree is jointly passed against all the defendants in one matter and severally against different defendants with respect to other matters, the first portion of the explanation should apply to decrees passed severally and the second portion to a decree or decrees passed jointly.

Applying this ratio to the facts of this execution matter before us it was open to the Municipality when they had filed the Darkhast No. 474 of 1938 against defendant No. 1 also to file another darkhast against defendants Nos. 2 and 3 for recovering the costs of the appeal. This they did not do and it does not avail them now to say that the decree was a joint decree and the present darkhast which they filed for recovery of the costs of the appeal from defendant No. 2 was in time.


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