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Lal Ratnakar Singh Vs. Kr. Rudra Pratab Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All402; 157Ind.Cas.429
AppellantLal Ratnakar Singh
RespondentKr. Rudra Pratab Singh and anr.
Cases ReferredChooa Sahu v. Tripoora Dutt
Excerpt:
- - for these reasons 1 consider that the decision of the lower court was incorrect and that the application before it was an application which was perfectly good in law. assuming that the lower court was correct in directing that the applicants must choose which of them should continue learned counsel has failed to satisfy me that there is any rule of law which prevents one of the applicants from withdrawing from the application......take advantage of the proceedings by beechuk and ramdeen than they could of proceedings taken by decree-holders in a totally different suit. a case has been referred to in which it is said that a partial execution by one or more decree-holders operates for the benefit of all parties who have any interest in the decree. now, if that partial execution of the decree be an attempted execution of the whole decree for the benefit of those entitled, no doubt the whole decree may be kept alive. but i am certainly not prepared to say that if a person who has only a fractional share, say one anna, in the decree, is improperly allowed to execute a fractional part of the decree (a proceeding i may observe, which is nowhere allowed by the act 8 of 1859), it appears to me there is no ground or.....
Judgment:

Bennet, J.

1. These are two execution first appeals brought by judgment-debtors under similar circumstances. The facts are that there was a suit for partition and there was an appeal in the High Court which was dismissed and three defendants were allowed separate costs as follows in the High Court:

Rs. a p.Recoverable by defendant 1 ... 7,193 11 0' ' ' 3 ... 1,132 11 0' ' ' 2 ... 2 0 0-------------------Total 8,328 6 0

2. The High Court's decree was dated 29th January 1929. On 25th January 1932 these three persons made an application for execution of the decree. The application stated that they were entitled to the separate amounts of costs set forth. Objection was taken that Maharao Raja Ram Singh had no right to execute the decree and that objection was upheld. The lower Court then had the application of two persons before it to obtain execution of separate amounts due to them. The lower Court decided that these two persons should not have made one application for execution and that the law required that separate applications should be made. The lower Court held that the two applicants might choose which of them would continue the execution case and that as regards the one who would continue the execution case his application would not be barred by time. The appeal has been taken against this order and the grounds set forth that when the lower Court held that the execution, application was not maintainable it should have dismissed the application, and that the Court was wrong to allow one of the applicants to continue the application and to hold that he was within time. When argument began in the case I informed learned Counsel for the appellant that he would have to satisfy me that the decision of the lower Court was correct that an application by the two persons was not maintainable. Learned Counsel was not able to show any rule of the Civil Procedure Code which required that separate applications should be made. Learned Counsel relied on a ruling reported in Chooa Sahu v. Tripoora Dutt (1870) 13 W.R. 244. In that case there was a decree awarding a sum of money to five persons, one-half to three persons and one-half to two persons. There was a proceeding for the execution of a half of the decree by one set of persons. Later after the period of limitation had expired the other set, of persons made an application and claimed that the application in execution of the first set of persons saved limitation for the second set of persons also. This was the question which, the Bench had to decide whether the application of the first set of persons saved limitation for the second set of persons. The Bench held that it did not. In deciding this point the learned Chief Justice stated on p. 245, in Col. 1:

The decrees are as distinct as if they had been passed in two different suits. We think that the applicants can no more take advantage of the proceedings by Beechuk and Ramdeen than they could of proceedings taken by decree-holders in a totally different suit. A case has been referred to in which it is said that a partial execution by one or more decree-holders operates for the benefit of all parties who have any interest in the decree. Now, if that partial execution of the decree be an attempted execution of the whole decree for the benefit of those entitled, no doubt the whole decree may be kept alive. But I am certainly not prepared to say that if a person who has only a fractional share, say one anna, in the decree, is improperly allowed to execute a fractional part of the decree (a proceeding I may observe, which is nowhere allowed by the Act 8 of 1859), it appears to me there is no ground or principle on which it can be said that such partial execution should be allowed to operate for the benefit of the persons entitled to the other 15 annas of the decree.

3. The latter part, of this quotation shows that the learned Chief Justice considered that on the question of procedure it was wrong to allow a person to whom a one anna share of the decretal amount had been decreed to make a separate application for execution. This is the only part of the ruling which deals with the question at present before me that is the question of procedure. The question of limitation in the Calcutta ruling has no bearing on the present case because the present is not a case where one set of decree-holders had been taking steps in execution and another set claimed the benefit of such steps. On the contrary so far whatever has been done has been done jointly by all the decree-holders. I consider that the Calcutta ruling is against the contention of learned Counsel for the appellant and that the principle of that ruling is that separate application should not be made but that all the decree-holders should join in one application even though they are entitled to separate amounts under the decree. Learned Counsel dwelt on the expression in the ruling that 'the decrees were as distinct as if they had been passed in two different suits.' I consider that the learned Chief Justice in using this expression was referring to the question of limitation and what he meant to convey was that for the purposes of limitation the action of one set of decree-holders could not save limitation for another set of decree-holders. When the learned Chief Justice came to deal with the question of procedure he laid down that a separate application was improper. Turning to the provisions in the Civil Procedure Code I find under Section 2(2):

'Decree' means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in that suit.

4. There is therefore one decree in each suit and there are not two, decrees in one suit. In the present suit there was actually one formal decree drawn up. Order 21, Rule 10 lays down:

Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree, etc.

that is, for the execution of one decree there should be one application made by the holder. The singular imports the plural and where there are more holders than one of a decree the language implies that the holders of the decree should make an application. It is obviously more convenient for the purposes of attachment and sale that for the execution of a single decree there should be a single application and a single procedure of attachment and a single procedure of sale, otherwise if there were a multiplicity of applications and attachments and sales there would be considerable confusion. Learned Counsel referred to the provisions of Section 73, Civil P.C. and stated that one application should be made by one of the persons entitled under this decree and that the other persons might apply for ratable distribution under Section 73. That section however states in Sub-section (1) that it implies to the case of execution of decrees for the payment of money passed against the same judgment-debtor. The use of the word in the plural indicates that the section is not intended to apply to the case of a single decree. The procedure therefore under Section 73 cannot in my opinion be imported into the present case. On the theory of learned Counsel apparently what would be done is to have separate applications made for execution and for separate sales, each of separate parts of the property (which would be difficult in case the judgment-debtor has only one item of property) and also by some rule unspecified and unknown to the Code separate applications should be joined for the purpose of attachment and sales. It appears to me that all these difficulties are obviated if the procedure which has actually been adopted by the decree-holders is permitted and an application is entertained by the Court from all the persons entitled under this decree. For these reasons 1 consider that the decision of the lower Court was incorrect and that the application before it was an application which was perfectly good in law. It was therefore unnecessary for the lower Court to direct that the applicants should choose which of them should continue and which of them should withdraw from the application. I desire however to add my opinion on the points which have been raised by the memoranda of appeal. Assuming that the lower Court was correct in directing that the applicants must choose which of them should continue learned Counsel has failed to satisfy me that there is any rule of law which prevents one of the applicants from withdrawing from the application. Learned Counsel admitted that where there are several plaintiffs one of the plaintiffs may withdraw from the suit. He was not able to show why one of several applicants for execution could not similarly be allowed to withdraw if he desired. When one of the applicants withdraws, the application continues naturally in the name of the remaining applicants and as the application was made within the period of limitation no question of limitation can arise.

5. For these reasons I dismiss these two appeals under Order 41, Rule 11. Permission is granted for a Letters Patent appeal.


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