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Goswami Murari Lal and anr. Vs. Mt. Bibi and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1940All395
AppellantGoswami Murari Lal and anr.
RespondentMt. Bibi and ors.
Excerpt:
- - that right subsists so long as the decree is not satisfied and the most important point to be remembered is that the liability is joint as well as several. in my opinion as the liabilities of all the judgment-debtors are joint and several it is open to the decree-holders to execute their decree against any of the judgment-debtors they like and therefore their application to execute their decree against judgment-debtors other than akbar husain was competent......estates act proceedings. section 9, sub-section (5), ordains thatif one or more of several joint debtors who are not members of the same joint hindu family apply under section 4 but all the joint debtors do not apply then the special judge shall determine the amount of the joint debt which is due by the debtor or debtors who have applied and the amount due by those who have not applied. for the purpose of this determination the special judge shall make the joint debtors who have not applied parties to the proceedings and shall hear any objection that they may make before recording his finding.2. clause (b) says:if all the joint debtors have not applied under section 4 the creditor shall have a right to recover from the debtors who have not applied only such amount on account of.....
Judgment:
ORDER

Rachhpal Singh, J.

1. This is a revision application by decree-holders arising out of a case in execution proceedings. The facts of the case can very briefly be stated as follows: Murari Lal and Ram Prasad obtained a decree against Akbar Husain and others. I am informed that Akbar Husain and others were cosharers in a certain village and that they have jointly sold their share and that under the terms of the sale deed it has been agreed that if the purchasers lost possession over the property the vendors would be liable in damages under the usual indemnity clause. The property or a portion thereof was lost and therefore Murari Lal and Ram Prasad instituted a suit and obtained a decree for damages against all the respondents. Now, it so happened that Akbar Husain, one of the judgment-debtors, made an application under Section 4, Encumbered Estates Act. He showed in his application the debt which was due to the two decree-holders. Somehow or other the other respondents were not made parties to the Encumbered Estates Act proceedings. Section 9, Sub-section (5), ordains that

if one or more of several joint debtors who are not members of the same joint Hindu family apply under Section 4 but all the joint debtors do not apply then the Special Judge shall determine the amount of the joint debt which is due by the debtor or debtors who have applied and the amount due by those who have not applied. For the purpose of this determination the Special Judge shall make the joint debtors who have not applied parties to the proceedings and shall hear any objection that they may make before recording his finding.

2. Clause (b) says:

If all the joint debtors have not applied under Section 4 the creditor shall have a right to recover from the debtors who have not applied only such amount on account of the joint debt as may be decreed by the Special Judge to be due by them.

3. Admittedly no such question arose in the Encumbered Estates Act proceedings. The decree-holders applied for execution of their decree as against those judgment-debtors who had not applied under Section 4, Encumbered Estates Act. The learned Judge of the Court below has therefore held that it is not open to the decree-holders to execute their decree against those judgment-debtors who had not applied under Section 4, Encumbered Estates Act. That is the only question for the determination in this case.

4. It appears to me that the view taken by the learned Judge of the Court below is not correct. Section 9, Sub-section (5)(a), refers only to the cases where a debt is due from several persons and the liability of the various debtors can be apportioned. It can have, in my opinion, no reference to a case where the liability of the various judgment-debtors is joint and several. Now, in the present case, we find that a decree has been passed against all the judgment-debtors. It is true that only one of them applied under the Encumbered Estates Act, and the Special Judge has given the decree-holders a decree against him. But that does not, in my opinion, take away their right to execute the decree against the other judgment-debtors. That right subsists so long as the decree is not satisfied and the most important point to be remembered is that the liability is joint as well as several. There is no question in a case where a decree has been passed against all the judgment-debtors for the entire amount of liability being apportioned. Each of the judgment-debtors against whom the decree has been passed is liable for the entire amount due. This is not a case where it can be said that the decree-holder is taking undue advantage of his position and that having realized the decretal amount from one of the judgment-debtors he is now seeking to realize the same amount twice over from other judgment-debtors. In my opinion as the liabilities of all the judgment-debtors are joint and several it is open to the decree-holders to execute their decree against any of the judgment-debtors they like and therefore their application to execute their decree against judgment-debtors other than Akbar Husain was competent. I therefore allow this application, set aside the order passed by the Court below and send back the case with directions that the application for execution made by the decree-holders should be heard and then disposed of according to law. The applicants will be entitled to get their costs from the judgment-debtors.


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