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Lal Singh Nayal Vs. Jiwanand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1939All545
AppellantLal Singh Nayal
RespondentJiwanand and anr.
Excerpt:
- - 2. admittedly, the decrees of the plaintiff and of the defendant-appellant (as well as the decree of defendant-respondent, nitya nand) are executable against the joint family estate, and it is argued on behalf of defendant-appellant, lal singh nayal, that they must therefore be deemed to have been passed against the same judgment-debtor, as contemplated by section 73, civil p......to the benefit of the provisions of section 295, civil p.c. at p. 34 their lordships say:the decree obtained by the respondent, (i.e. the widow) is a decree against yakub husain as representative of her deceased husband, whilst the decree obtained by the appellant is against yakub husain in his personal capacity, the two decrees have not, in fact, been obtained against 'the same judgment-debtor.'8. it is argued that since in the circumstances of that ease the eo nomine construction was not accepted by this court, there is an implied approval of the same proposition in a converse set of circumstances. i am unable to accept this contention. it is, i think, generally agreed that a decree obtained against an individual personally and a decree obtained against him as representative of a.....
Judgment:

Collister, J.

1. This is a defendant's appeal, the appellant being one Lal Singh Nayal. It appears that Jiwa Nand, plaintiff, had a decree against a man named Makoliya, who was admittedly the father of a joint Hindu family. After the death of Makoliya, Jiwa Nand took out execution, impleading the sons of Makoliya as legal representatives of the judgment-debtor. The family estate was put to sale, and Rs. 700 odd were realized. Before the receipts of the assets defendant-appellant Lai Singh Nayal and defendant-respondent Nitya Nand applied for rateable distribution under Section 73, Civil P.C., and their applications were allowed by the executing Court. It appears from the evidence of Eupua, one of the sons of Makoliya, that after their father's death the four sons accepted liability in respect of a debt due from Makoliya to Lai Singh Nayal and executed separate promissory notes in the sum of Rs. 200 each. This position is not contested by learned Counsel for the defendant-appellant. After the death of Makoliya, Lai Singh Nayal obtained decrees against the sons; and defendant-respondent Nitya Nand also obtained a decree against them on foot of a promissory note which had been executed by Gopia, one of the sons, but which related to a debt due from their father. Gopia executed the promissory note on his own behalf and on behalf of his brothers.

2. Jiwa Nand, being aggrieved by the executing Court's order granting rateable distribution to Lai Singh Nayal and Nitya Nand, instituted a suit under Section 73, Clause (2), Civil P.C., claiming that his decrees and the decrees of the two defendants were not passed against the same judgment-debtor within the meaning of Section 73(1), Civil P.C., and therefore the defendants were not entitled to rateable distribution. The suit was dismissed by the trial Court, but has been decreed by the lower Appellate Court. It is against this decree that Lai Singh Nayal has come to this Court in second appeal. Nitya Nand has not appealed. Section 73(1), Civil P.C., provides that

where assets are held by a Court and more per. sons 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 assets, after deducting the costs of realization, shall be rateably distributed among all such persons.

2. Admittedly, the decrees of the plaintiff and of the defendant-appellant (as well as the decree of defendant-respondent, Nitya Nand) are executable against the joint family estate, and it is argued on behalf of defendant-appellant, Lal Singh Nayal, that they must therefore be deemed to have been passed against the same judgment-debtor, as contemplated by Section 73, Civil P.C. The first authority to which I am referred by learned Counsel for the defendant-appellant is Nilmoni Dey v. Hiralal Das (1918) 5 A.I.R. Cal. 281. In that case two decrees were obtained against the estate of a deceased testator, each decree being against two out of three executors. One executor was common to both suits, and each decree was prima facie executable against the estate. It was held by a Bench of the Calcutta High Court that the decree-holders were entitled to rateable distribution of the assets under Section 73, Civil P.C., Mookerjee J. observed:

Each decree is prima facie capable of execution against the estate of the deceased testator. In these circumstances, we are of opinion that the two decrees may, without unduly straining the language of Section 73,be regarded as passed against the same judgment-debtor, namely they are both decrees against the estate of Bhushan Chunder Bhar, in one case represented by A and B, in the other by B and C. We may add that we are not disposed to put a narrow construction upon the terms of Section 73, so as to defeat the ends of justice. We hold accordingly that the two decree-holders must rateably divide the assets under Section 73.

3. This decision is cited as authority for the proposition that decrees which are executable against the same estate must be deemed to be decrees which have been passed against the same judgment-debtor within the meaning of Section 73, Civil P.C. The next case is from Madras, and the facts are very similar to the facts of the case now under appeal. This is a Full Bench decision in Ramakrishnan Chettiar v. Kasi Viswanathan Chettiar (1936) 23 A.I.R. Mad. 40. Certain creditors obtained a decree against the sons of a deceased Hindu father in respect of a debt contracted by the latter. Certain other creditors, who had obtained a decree against the father himself, took out execution against the sons as legal representatives of the deceased debtor; and they also obtained decrees against the sons themselves in respect of debts which had been contracted by their father. All the decrees wore executable against the family property of the deceased and his sons, and it was held that rateable distribution was permissible under Section 73, Civil P.C. At p. 41, Pandrang Row J. observed:

It is obvious that a strict literal construction of the expression 'the same judgment-debtor' cannot be adopted in the sense that the decrees must be against the same persons eo nomine: it has been held in a series of oases that all the judgment-debtors in each of the several decrees need not be identically the same, and that it is sufficient if there is one judgment-debtor common to all the decrees, and this proposition is not denied by the learned advocate for the respondent in these petitions. It has also been held, and here too-there is no dispute, that even though the person against whom the decrees were passed is the same in name, Section 73 will not apply unless that person-occupied the same character in all the decrees; for instance, where one decree was passed against A in his personal capacity and another against him as heir of P, the two decrees are not against the same judgment-debtor. It would therefore seem that the eo nomine construction cannot be the right one,, and the expression 'the same judgment-debtor' is not so simple and clear in its meaning as to dispense with any reference to the general' intention of the Section in which it is found. About that intention there can be no doubt, and a construction which defeats that intention no less than the ends of justice should be avoided if the provisions of law are to be interpreted in a reasonable manner.

4. This view was not accepted by the Bombay High Court in Chunnilal Raichand v. Broach Urban Co-operative Bank Ltd. (1937) 24 A.I.R. Bom. 461. Tyabji J. at p. 463 observed:

It seems to me that the Courts have no jurisdiction to expand in this manner a legislative provision such as Section 73. The Section provides for one particular case. Another case (considered from what the Court conceives to be the object with which Section 73 is enacted) may stand on the same footing. But this is no ground for assuming jurisdiction to decide the other case, for which no provision has been made by the Legislature, as if it had been provided for by the Legislature.

5. The learned Judges approved and followed an earlier decision of their own High Court, Govind Abaji v. Mohoniraj Vinayak (1901) 25 Bom. 494. In the latter case Jenkins C.J. at page 496 observed:

In my opinion no case is made for a rateable distribution under Section 295, Civil P.C. It is useless to speculate as to any other test than that which the Section itself provides, and that test is stated lathe plainest terms. So far as the present case goes, it is enough to say that the money decrees must be against the same judgment-debtor. Here however one decree is against Bhau Babaji Jangarft and the other is against his son Kashinath.

6. The above two authorities are relied upon by learned Counsel for the plaintiff-respondent. There are apparently no cases of this Court directly in point, but I have been referred to Bithal Das v. Nand Kishore (1901) 23 All. 106 and Bhola Nath v. Maqbul-un-nisa (1903) 26 All. 28. In the former case a creditor who held a decree against a member of a joint Hindu family consisting of two brothers-attached the judgment-debtor's interest in. a portion of the joint family property in execution of his decree. Subsequently the-judgment-debtor died. When his rights and interests in the attached property were being brought to sale, certain other creditors, who held decrees against the same judgment-debtor or his representatives, but who had not attached any of the joint family property in his lifetime, applied for rateable distribution under Section 295, Civil P.C. It was held that the attachment inured only for the benefit of the decree-holder who had made it and that the non-attaching decree-holders, having no right to enforce execution against the property after the death of the judgment-debtor, were not entitled, by virtue of Section 295 of the Code, to share in the assets realized by sale under such attachment. The reason why the learned advocate for the defendant-appellant has cited this authority is because of certain observations of Strachey C.J. at p. 110, where he says:.therefore it is clear that one must give the Section a common sense construction, and see what sort of case it really provides for. Now 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.

7. There was no discussion in that case as regards the meaning to be attached to the expression 'the same judgment-debtor.' In the other Allahabad case, namely Bhola Nath v. Maqbul-un-nisa (1901) 26 All. 28 a Mahomedan widow obtained against the other heir of her deceased husband a decree for her dower debt payable out of the estate of the deceased, and in execution thereof attached certain property of the deceased in the hands of the heir. A creditor of the heir, having obtained a money decree against the heir for his personal debt, subsequently attached the same property in execution of that decree. It was held that the widow's decree for dower was entitled to priority over the decree against the heir for the heir's personal debt and that the creditor of the heir was not entitled to the benefit of the provisions of Section 295, Civil P.C. At p. 34 their Lordships say:

The decree obtained by the respondent, (i.e. the widow) is a decree against Yakub Husain as representative of her deceased husband, whilst the decree obtained by the appellant is against Yakub Husain in his personal capacity, The two decrees have not, in fact, been obtained against 'the same judgment-debtor.'

8. It is argued that since in the circumstances of that ease the eo nomine construction was not accepted by this Court, there is an implied approval of the same proposition in a converse set of circumstances. I am unable to accept this contention. It is, I think, generally agreed that a decree obtained against an individual personally and a decree obtained against him as representative of a deceased person are not decrees against 'the same judgment-debtor,' inasmuch as he occupies a different capacity in each case and is thus a different person in law. The language of Section 73(1), Civil P.C., is clear and unambiguous; and whatever arguments might be adduced as to the desirability or otherwise of the law being as contended for by learned Counsel for the defendant-appellant, I am of opinion that, in the absence of anything in the Act itself to indicate that the apparent intention of the Section is not the real intention, the Court would not be justified in reading into these provisions a meaning which on a plain interpretation they are incapable of bearing. If it had been the intention of the Legislature that a decree obtained against a father and executable after his death against the joint estate and a decree obtained against the sons and executable against the same estate should be deemed to be decrees against the same judgment-debtor, it would presumably have given effect to such intention. But as the Section stands, I am unable to hold in the present case that a decree obtained against Makoliya and a decree obtained after his death against his sons upon a promissory note executed by them in respect of a debt of their father are 'decrees passed against the same judgment-debtor.'

9. The next plea taken by learned Counsel for the defendant-appellant is that Section 73 is not exhaustive, and I am referred to Kusum Kumari Devi v. Gayanath Pramanik : AIR1936Cal390 . In that ease none of the creditors were entitled to rateable distribution under Section 73, Civil P.C., by reason of the fact that they had not applied for execution before the date of receipts of assets by the Court but they had made attachment of these assets, and it was held by a learned Judge of the Calcutta High Court that no lien was created by attachment in favour of any of them and that the Court holding the assets was empowered to divide them among all the creditors pro rata. That decision may be authority for the view which it expresses in respect of its particular facts; but in the present case the matter (admittedly falls within the scope and purview of Rule 73, Civil P.C., and the provisions of that Section are therefore applicable, and I do not think that the Court can invoke any inherent powers outside the provisions of that Section.

10. The last plea taken is as follows: A right of suit is given under Clause (2) of Section 73, and it is argued that in the absence of that provision there would be no right of suit at sill, and therefore the plaintiff, in order to Hiring himself within the terms of Clause (2), must satisfy all its conditions. One of those conditions is that the assets must be liable to be rateably distributed, whereas the plaintiff's case is that there is no liability for rateable distribution at all. Therefore, it is argued, he has no right of suit. I cannot say that I am very impressed with this argument. I am of opinion that the terms of this Sub-section (2) are wide enough to cover a case where the plaintiff claims that he is entitled to all the assets in the custody of the Court and that the defendant, who claims and obtains rateable distribution, is not entitled thereto. No appeal is provided under Section 73, Civil P.C., in respect of claims between rival decree-holders, and it can hardly have been the intention of the Legislature that an order of the executing Court granting rateable distribution should be final. For the reasons given above this appeal fails and is dismissed with costs. Permission to appeal under the Letters Patent is granted.


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