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Sri NaraIn and ors. Vs. Gur Charan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Case NumberExn. Decree Appeal No. 46 of 1945
Judge
Reported inAIR1950All177
ActsUttar Pradesh Eucumbered Estates Act, 1934 - Sections 9(5); Limitation Act, 1908 - Schedule - Article 182
AppellantSri NaraIn and ors.
RespondentGur Charan Lal and ors.
Appellant AdvocateR.N. Shukla, Adv.
Respondent AdvocateH.D. Shrivastava and ;Anand Madhava, Advs. for Respondent 1
DispositionAppeal dismissed
Excerpt:
.....to him because of the payment made by him to mt. this apportionment could also be made only by the special judge and since the special judge had failed to do so, the decree was inexecutable. in both these cases there had been no apportionment of the debts between the applicants and the non-applicants and the creditor sought to execute the decree against the non-applicants without apportionment on the ground that the liability of the judgment-debtors was joint as well as several. it is, however, now well-established that if amendments in an application are accepted, the amendments date back to the date of the application and the corrected application is deemed to have been presented on the date on which the defective application was first presented. this application was consigned to..........learned counsel for the appellants urged that under clause (c) of sub-section (5) of section 9, a joint decree can be executed against non-applicants only in respect of the amount determined by the special judge to be due by them in accordance with clause (b) and in this case, since this amount was not separately determined, execution cannot proceed. clause (c) is an enabling provision which lays down that, after a joint debt has been apportioned between the applicants and the non-applicants, the creditor is entitled to institute a suit or to file an application for execution of a joint decree for the amount so determined in the encumbered estates act proceedings. it is contended that, in order to proceed under this clause, the amount, in respect of which a suit can be instituted, and.....
Judgment:

1. One Mt. Rajeshwari filed a suit for maintenance against 6 sets of defendants out of whom we are concerned only with 5 sets in this appeal. These 5 sets of defendants were: (1) Jugal Kishore, (2) Sri Narain, Prem Narain and Jagat Narain, (3) Kali Prasad, Kali Fragana and Kali Nath, (4) Sheo Prasad, Durga Prasad and Brahma Narain and (5) Rameshwar Prasad, Raj Narain, Ram Narain and Mahraj Narain. Mt. Rajeshwari's suit was decreed in the year 1924 against all the 6 sets of defendants and the amount of the decree was made a charge on the immovable property belonging to all of them. The whole amount in respect of the decree was realised by Mt. Rajeshwari from Jugal Kishore alone. Jugal Kishore obtained a suit for contribution against the remaining sets of defendants and obtained a preliminary decree on and December 1930. In this decree the amount due from sets Nos. 2 to 6 was shown separately from the amount due from set No. 6. The final decree in Jugal Kishore's suit was passed on 8th November 1932.

2. Subsequently another suit was brought by Mt. Rajeshwari for further maintenance and she obtained a decree against the same sets of defendants on 14th November 1933. Again the whole amount was realised by her from Jugal Kishore alone. Jugal Kishore could not bring a suit for contribution in respect of the amount paid by him to Mt. Rajeshwari in respect of the second suit.

3. In the year 1934 two sets of defendants, viz., sets Nos. 4 and 5 filed applications under the Encumbered Estates Act. In both these Encumbered Estates Act proceedings Jugal Kishore filed claims in respect of the amount due to him in the final decree obtained on 5th November 1932 as well as the amount due to him in respect of the payment made by him to Mt. Rajeshwari in her second suit. All the non-applicants, from whom the amounts were due to Jugal Kishore in respect of the decree and subsequent payment made to Mt. Rajeshwari, were made parties to these proceedings in order that the debts may be apportioned between the landlords applicants and the non-applicants in accordance with Section 9, Encumbered Estates Act. The Encumbered Estates Act proceedings instituted by set No. 4 were before the Special Judge, first grade, Unao, whereas proceedings by set No. 5 were instituted before the Special Judge, second grade, Unao. Since the question of apportionment of the same claim was involved in both these proceedings under the Encumbered Estates Act, the proceedings pending before the Special Judge, second grade, Unao, were transferred by the District Judge to the Special Judge, first grade, Unao, who thereupon dealt with both the proceedings. The Special Judge recorded all the proceedings in the case that had been instituted by set No. 4 and gave detailed calculations and findings in that case. On the basis of those calculations, he apportioned the joint debt of Jugal Kishore between the landlords applicants, i. e. set No. 4 and the remaining debtors from whom he was entitled to contribution. In the other proceedings instituted by set No. 5 apportionment was similarly made between the landlords applicants, i. e. set No. 5 and the other non-applicants, but in these proceedings detailed calculations were not made afresh, and the calculations made in the proceedings instituted on the application of set No. 4 were considered. In apportioning the debts the Special Judge., worked out a consolidated amount due from the landlords-applicants in each proceedings, to Jugal Kishore in respect of the amount for which he had obtained a decree in 1932 as well as in respect of the undecreed amount which was due to him because of the payment made by him to Mt. Rajeshwari under her decree obtained on 14th November 1933. Similarly a consolidated amount due from the applicants and the non-applicants was also worked out in the case instituted by set No. 5. The proceedings under the Encumbered Estates Act instituted on the application of set No. 4 were quashed on 5th May 1944. This was ordered after the apportionment of the joint debt of Jugal Kishore had been made between the applicants and the non-applicants in these proceedings also.

4. Subsequently on 3rd June 1944, Jugal Kishore applied for execution of the decree which he had obtained in 1932 against sets Nos. 2 and 3 who were non-applicants in both the Encumbered Estates Act proceedings. Objections were filed by the judgment-debtors (sets Nos. 2 and 3) inter alia on the ground that the amount due from them under the decree had not been determined by the Special Judge and consequently the decree was incapable of being executed. Another objection taken was that the execution application was barred by time. The Additional Civil Judge, Unao, dealing with the execution application held that the decree was not barred by time and that the amount due from the judgment-debtors against whom the decree was sought to be executed had been determined by the Special Judge. He came to the finding that only a sum of Rs. 2506 was due under the decree from these judgment-debtors. He, therefore, only partly allowed the objection and partly dismissed it holding that the decree was capable of being executed for a sum of Rs. 2,506. He directed the execution to proceed in respect of this amount.

5. The judgment, debtors have filed this appeal and in this appeal they only pressed the grounds mentioned above. The other grounds taken in the objection under Section 47, Civil P. C., in the lower Court were not urged in this appeal and we, therefore, need deal with these two points only.

6. The first point urged by the learned counsel for the appellants was that the proceedings under the Encumbered Estates Act instituted by set No. 4 were quashed so that the order of apportionment of the debt made in these proceedings became void. In the proceedings instituted by set No. 5, the details of the liability were not worked out and the amount due from the non-applicants was not separately declared. It was, therefore, contended that under Clause (b) of Sub-section (5) of Section 9, Encumbered Estates Act the execution could not be proceeded with. It, however, appears to be correct, as found by the lower Court, that, even in the proceedings instituted by set No. 5, there was an apportionment of the joint debt of Jugal Kishore between, the landlords applicants and the non-applicants, all the non-applicants were impleaded as parties in both the Encumbered Estates Act proceedings and the two proceedings were linked together and all the calculations were made in only one case. The file of the case instituted on the application of set No. 6 was before the lower Court. The order-sheet of that file dated 22nd December 1939 showed that the proceedings for this case were recorded in the connected case instituted by set No. 4. The file also showed that on 6th January 1939, orders were passed apportioning the liability between the applicants and the non-applicants. The proceedings relating to the apportionment of the liability of the joint-debtors in the ease of set No. 4 were also adopted in the cage of set No. 5. Consequently, it is clear that the apportionment of the joint debts between the applicants and the non-applicants was made by the Special Judge in the proceedings instituted by set No. 5 and there was compliance with the provisions of Clause (b) of Sub-section (5) of Section 9, Encumbered Estates Act.

7. The next point urged was that, in making this apportionment, the Special Judge had not separately laid down the amount which was due to Jugal Kishore from the non-applicants under his decree and the amount due from the non-applicants in respect of his undecreed claim. This apportionment could also be made only by the Special Judge and since the Special Judge had failed to do so, the decree was inexecutable. We can see no force in this contention, Section 9 merely requires that the Special Judge should apportion the debt between the landlords-applicants and the non-applicants and Clause (b) of Sub-section (5) of Section 9 only lays down the limitation that the creditor has a right to recover from the debtors who have not applied, only such amount on account of the joint debt as may be determined by the Special Judge to be due by them. When the Special Judge had declared the amount due to Jugal Kishore from the non-applicants in respect of both the joint debts, he had done all that he was required to do. There is nothing' in Clause (a) or (b) of Sub-section (5) of Section 9 requiring the Special Judge to lay down separately what amount is due from the non-applicants in respect of separate items of debts which may have been the subject-matter of the claim. The learned counsel for the appellants urged that under Clause (c) of Sub-section (5) of Section 9, a joint decree can be executed against non-applicants only in respect of the amount determined by the Special Judge to be due by them in accordance with Clause (b) and in this case, since this amount was not separately determined, execution cannot proceed. Clause (c) is an enabling provision which lays down that, after a joint debt has been apportioned between the applicants and the non-applicants, the creditor is entitled to institute a suit or to file an application for execution of a joint decree for the amount so determined in the Encumbered Estates Act proceedings. It is contended that, in order to proceed under this clause, the amount, in respect of which a suit can be instituted, and the amount in respect of which a decree can be executed, must have been separately declared by the Special Judge. We cannot accept this contention because Clause (c) is merely a procedural provision which in no way restricts the rights of a creditor. This clause appears to have been provided on the assumption that the undecreed and the decreed joint-debts would be separately determined by the Special Judge and consequently there is no mention about the procedure to be adopted where an undecreed and a decreed debt to a creditor from the same set of joint-debtors are determined as one consolidated amount. In such a case, however, there appears to be no provision making it compulsory for the Special Judge to make the apportionment between the classes of debts due to the creditors after he has once apportioned the joint debt between the applicants and the non-applicants. The whole scheme of the Encumbered Estates Act is that the determination of the liability of the applicants and the non-applicants must be made by the Special Judge and where such a determination is not obtained from the Special Judge, the joint debts should not be capable of realisation. Once, however, the joint debts have been apportioned between the applicants and the non-applicants, the remedy against the non-applicants is left to be sought before the ordinary Courts having jurisdiction to grant relief in respect of those debts. In this case the Special Judge had apportioned the joint debts of Jugal Kishore between the applicants and the non-applicants and consequently all further matters requiring determination between the creditor and the non-applicants have to be decided by the regular Courts. The Special Judge had no futher jurisdiction in the matter. In the case of execution of. a decree the executing Court properly exercises the function of determining of the amount due under the decree. The executing Court was, therefore, quite competent to decide what amount of joint debts determined by the Special Judge under Clause (b) of Sub-section (5) of Section 9 was due in respect of the decree and to hold that the decree was executable in respect of that amount. The learned counsel for the appellants in support of this proposition, referred us to the cases reported in Har Charan Lal v. Sukha Nand, 1942 O. W. N. 78 : (A. I. R. (29) 1942 Oudh 248) and Ahmad Ali Khan v. Sheo Shankar Singh, 1942 O. W. N. 463 : (A.I.R. (29) 1942 Oudh 482). Neither of these two cases deals with the point arising before us. In both these cases there had been no apportionment of the debts between the applicants and the non-applicants and the creditor sought to execute the decree against the non-applicants without apportionment on the ground that the liability of the judgment-debtors was joint as well as several. It was held that whether the liability was joint or joint and several, execution could not proceed if there had not been any apportionment between the applicants and the non-applicants. In this case the apportionment between the applicants and the non-applicants has already been made by the Special Judge, The only question that has been urged is that the Special Judge did not apportion the joint debts between the decreed and the undecreed claims but this determination had to be made after excluding the landlords applicants altogether. This function only belongs to the Courts seized of the claims, either by institution of a suit in respect of the undecreed claim or by execution of the decree in respect of the decreed claim. The learned counsel also referred us to the case of Tirbhawan Datt v. Pashupat Pratap Singh, 1947 O. W. N. 367 : (A. I. B. (34) 1947 Oudh 201). In this case again the amount payable by the non-applicants had not been determined by the Special Judge and it was consequently held that there was no sum in respect of which execution could proceed against the non-applicants-debtors. This case is also distinguishable because in the present case the liability of the non-applicants in respect of the joint debts had been, as held above, already determined by the Special Judge. Consequently the finding of the lower Court that the decree can be executed in respect of a sum of Rs. 2,506 is quite correct. We may mention that the learned counsel for the appellants has not challenged the correctness of the amount worked out by the lower Court.

8. The second ground that the application for execution was barred by time was not very seriously pressed by the learned counsel for the appellants. As has been mentioned before, the final decree in favour of Mt. Rajeshwari was passed on 5th November 1932. The first application for execution was made on 4th November 1935. The application was, however, registered on 16th December 1935, when some defects in the application had been removed. It was contended that the application was registered more than three years after the date of the decree and was, therefore, beyond time. It is, however, now well-established that if amendments in an application are accepted, the amendments date back to the date of the application and the corrected application is deemed to have been presented on the date on which the defective application was first presented. In this case also, therefore, it must be held that the first application was in accordance with law on 4th November 1935, and was, therefore, made within time. This application was consigned to records on 5th April 1940. The second application was presented on 5th April 1942, and was consigned to records in 1943. This third application made on 3rd June 1944, is, therefore, well within time.

9. There is no force in the appeal and the appeal is dismissed with costs.


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