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Mirza Umrao Beg Vs. Mirza Mukhtar Beg and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All494; 74Ind.Cas.687
AppellantMirza Umrao Beg
RespondentMirza Mukhtar Beg and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi rule 15 - execution of decree--decree for costs if, favour of several plaintiffs--satisfaction by some decree--holders, validity of--execution--procedure--court, discretion of. - - the attention of the execution court was, therefore, distinctly drawn to the provisions of order xxi, rule 15 of the civil procedure code, but it is by no means; parties will pay and receive costs of this appeal in proportion to failure and success......of all the plaintiffs. it follows as a natural consequence that it can only be executed by all the decree-holders jointly, or by some only of the decree-holders subject to the provisions of order xxi, rule 15 of the civil procedure code above referred to. it also follows that no one of the decree-holders is competent to grant full discharge of the decree oat of court, or u certify to the court complete, satisfaction of the decree; without the concurrence of all the decree-holders. so far, the decision of the court below is correct. if the judgment-debtor has really paid the entire amount of the decree to his sister, but has done so with the obvious intention of evading the provisions of order xxi, rule 15 of the civil procedure code, he must take the consequences if the result is in fact.....
Judgment:

1. This is an execution first appeal arising out of an unfortunate litigation which has already occupied our attention in connection with Regular First Appeal No. 39 of 1920. The point which we are now called upon to decide is, however, distinct from any of the questions raised in the connected appeal above referred to. The suit was one for partition. There, were fifteen plaintifts in the case, and in the preliminary decree as drawn up these plaintiffs were awarded their costs against the defendant. There was an appeal to this Court and also a petition of cross-objections on the part of the plaintiffs, with the result that the preliminary decree passed by the Trial Court was further modified in favour of the plaintiffs and the defendant was made liable to a further sum on account of costs. The application with which we have to deal is an application by fourteen of the plain tiffs, Nos. 2-15, asking that the entire decree for costs may be executed, subject to such orders as the Court, may see fit to pass for the preservation of the rights of the first plaintiff, Musammat Baiyazi Begam, who had declined to join in the application for execution. The attention of the Execution Court was, therefore, distinctly drawn to the provisions of Order XXI, Rule 15 of the Civil Procedure Code, but it is by no means; clear from the order passed whether that; Court applied its mind to these provisions. The point of the matter is, that the first plaintiff, Musammat Faiyazi Begam, is the own sister of the judgment debtor defendant, Mirza Umrao Begam and it has been made; evident enough, not only from the proceedings in this execution matter, but from proceedings which have taken, place in the Court below in connection with the preparation of the final decree for partition, that the brother and sister have come to, some sort of arrangement amongst the noiseless. In connection with that arrangement, no doubt, the first plaintiff, Musammat Faiyazi Begam, has certified to the Court below that she has realised the full amount of the costs awarded under the decree, which the remaining plaintiffs are now seeking to execute. The Court below has rightly held that the decree for costs as drawn up operates, independently of the rest of the decree, as a simple money decree, jointly in favour of all the plaintiffs. It follows as a natural consequence that it can only be executed by all the decree-holders jointly, or by some only of the decree-holders subject to the provisions of Order XXI, Rule 15 of the Civil Procedure Code above referred to. It also follows that no one of the decree-holders is competent to grant full discharge of the decree oat of Court, or U certify to the Court complete, satisfaction of the decree; without the Concurrence of all the decree-holders. So far, the decision of the Court below is correct. If the judgment-debtor has really paid the entire amount of the decree to his sister, but has done so with the obvious intention of evading the provisions of Order XXI, Rule 15 of the Civil Procedure Code, he must take the consequences if the result is in fact to compel him to pay the whole amount of the decree, or any part thereof, twice over. The real difficulty in the case turns on the proper application of the discretion allowed to the Court by Order XXI, Rule 15 of the Civil Procedure Code. We have no doubt, that this is a wide discretion and that the Court, so long as it insists upon payment of the entire amount of the decree by the judgment-debtor, has authority to make such adjustment of the rights of the decree-holders inter, se as it may think equitable and proper. Those rights, however, are the rights under the decree. In the present instance, the Court below Seems to have assumed that if there be a, decree in favour of a large number of plaintiffs it must be understood that they are entitled to divide the money amongst themselves per capita. Even on this basis we find it a little difficult to understand why the Court below has given the applicants for execution 7/8ths of the decretal amount, seeing that they represent 14 out of 15 plaintiffs. We think, however, that the Court, without going behind the terms of the decree, or entering into any question which, if it was to be litigated; at all as between the plaintiffs, should have been adjudicated upon prior to the passing of the decree and hot after, is nevertheless entitled for the purposes of. Order XXI, Rule 15 of the Civil, of Procedure Code to examine the pleadings and to inform itself as to the precise position of the plaintiffs as they come into Court. Once this is done, it becomes obvious that the two sets of plaintiffs, namely, Musamma Faiyazi Begam as the plaintiff of the first party and the remaining plaintiffs as plaintiffs of the second party, were equally interested in the result of the litigation. The, logical, Way therefore, of adjusting the accounts between them; would be to see; that they each got half of the money due under the decree for costs Now Musammat Faiyazi Begam has committed herself to certifying to the Court, that she has been paid in full. Her interests, therefore, are sufficiently protected under the terms of the rule in question by taking note of the fact certified by her. The result we thus arrive at is, that execution of this, decree should have been permitted in favour of the remaining decree-holders to the extent of a half share in the costs. We modify the order of the Court below, accordingly. Parties will pay and receive costs of this appeal in proportion to failure and success. The costs will include fees on the higher scale


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