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B. Hanumantha Raw and ors. Vs. A. Krishnamma and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad518
AppellantB. Hanumantha Raw and ors.
RespondentA. Krishnamma and ors.
Cases ReferredSee Narayana Pattar v. Gopalakrishna Pattar
Excerpt:
- .....guntur a joint mortgage decree for rs. 12,000 was passed in favour of two co-plaintiffs. the 2nd decree-holder (4th respondent) transferred his interest in the decree to respondents 1 and 3 who applied to the court for recognition of the transfer which, in the absence of opposition, was ordered. an application for execution of a joint decree by a transferee of the interest of one decree-holder has to be made under order 21, rule 16 (section 232 of the code of 1882), and the court ordinarily imposes conditions for the protection of the interests of the judgment-debtors and the other decree-holders.2. in this case before the transfer was effected there was a settlement alleged to have taken place out of court by means of a sale of the equity of redemption to a brother of the 2nd.....
Judgment:

Spencer, J.

1. O.S No. 16 of T905 on the file of the District Court of Guntur a joint mortgage decree for Rs. 12,000 was passed in favour of two co-plaintiffs. The 2nd decree-holder (4th respondent) transferred his interest in the decree to respondents 1 and 3 who applied to the Court for recognition of the transfer which, in the absence of opposition, was ordered. An application for execution of a joint decree by a transferee of the interest of one decree-holder has to be made under Order 21, Rule 16 (Section 232 of the Code of 1882), and the Court ordinarily imposes conditions for the protection of the interests of the judgment-debtors and the other decree-holders.

2. In this case before the transfer was effected there was a settlement alleged to have taken place out of Court by means of a sale of the equity of redemption to a brother of the 2nd decree-holder and a mortgage for Rs. 9,000 in favour of the 1st decree-holder.

3. The respondents were permitted to execute the decree as if there had been no adjustment, and the legal representatives of the 1st decree-holder, who are appellants in the appeals, before us, objected to execution but the District Judge overruled their objections, and they now appeal.

4. A preliminary objection has been taken that no appeal lies on the ground that the matter in dispute not being a question arising between the parties to the suit in which the decree was passed, does not come within the scope of Section 47 C.P.C.

5. It was laid down so long ago as 1871 in Gooroo Doss Roy v. Ram Runginee Dossia [1871] 17 W.R. 136 and Odhoya Pershad v. Mahadeo Dutt Bhandaree [1871] 17 W.N. 415 respectively that disputes between co-decree-hold are as to the right of one to execute a joint decree to the exclusion of the other were not questions arising between the parties to a suit. Disputes between judgment-debtors inter se as to possession of property after satisfaction of a decree similarly would not satisfy the conditions of this Section See Anavarda Khan Pani Sahib V. Misiri Khan Pani Sahib : (1916)31MLJ44 . To come within the category of Section 47 they must be questions arising between persons opposed in interest in the suit and not between a party to the suit and his own representative, Tide Yagnasami Ayyar V. Chidambarnath Mudaliar [1920] 13 L.W. 15 and Magan Lal v. Doshi Mulji [1901] 25 Bom. 631. Persons may be parties opposed to each other without necessarily being arrayed as plaintiff and defendant respectively in the suit vide Mangayya v. Sri. Ramulu [1913] 13 M.L.T. 347. Even a defendant who has been exonerated from a suit, would on a liberal construction be treated as one of the 'parties to the suit' within the meaning of Section 47, vide Ramaswami Sastrulu v. Kameswaramma [1900] 23 Mad. 316.

6. No appeal is provided against an order under Order 21, Rule 15 or Rule 16 Compare Ratanlal v. Bai Gulab [1899] 23 Bim. 623.

7. It is only when such orders determine questions arising between parties to the suit or their representatives that they become appealable as decrees passed under Section 47, C.P.C. vide Lakshmi Ammah v. Ponnassa Menon [1893] 17 Mad. 394 and Maganlal v. Doshi Mulji [1901] 25 Bom. 631. A question whether a decree has been discharged is a question relating to the execution, discharge or satisfaction of the decree, and as observed by Napier, J. in Thimma Reddy v. Subba Reddyar [1918] M.W.N. 507 to allow one of several joint decree-holders who have already recieved payment to come in and apply for execution after the other decree-holders have certified discharge of the debt would open the door to fraud and defeat the object of Order. 21 Rule 15.

8. In the present case the applications were made to the District Court quoting Sections 47 and 151 as the provisions under which the Court had authority to act. They were not, as now suggested, applications under Order 21 Rule 2 to record satisfaction of the decree. The appellants before us were interested not merely as being legal representatives of one of the decree-holders, but also as being holders of mortgages over portions of the judgment-debtors' properties, they had acquired in some degree the interest of defendants. The District Judge's order does not disclose under what provision of law he purported to be disposing of these applications, but apparently it was Section 47, as the Section was entered at the head of the applications and no objection was then taken to his porcedure. Even if the case did not strictly fall under that Section the Judge's order would be appealable if he purported to act under that Section See Abdul Rahiman Sahib v. Ganapathi Bhatta [1900] 23 Mad. 517 and Latchmanan Chetty v. Ramanathan Chetty [1904] 28 Mad. 127.

9. The preliminary objection there fore fails and we must proceed to dispose of the appeals on their merits.

Odgers, J.

10. I agree.

11. The District Judge has dismissed these applications on the sole ground that the applicants were barred by res judicata, from raising a question as to the complete satisfaction of the decree in O.S. No. 17 of 1905 and the partial satisfaction of the decree in O.S. No. 16 of 1905 by reason of the prior proceedings of the District Judge, of August 20th 1918 passed in E.P. Nos. 12 and 13 of 1917 and E.A. Nos. 175 and 176 of 1918, recognising the transfer of the 2nd decree-holder's interest and permitting execution by the transfere, decree-holders to proceed.

12. The appellants were not present at those earlier proceedings. The notice which was sent to them put them on notice of two things: (1) that the transferee decree-holders had purchased the rights and liabilities of the 2nd plaintiff and (2) of their intention to apply for permission to execute the decree in O.S. No. 17 of 1905. The two decrees were being executed together. It is not denied that a balance was outstanding on one. The transferee decree-holder's application was for permission to execute the decrees for the benefit of all the decree-holders. They may not have wished to oppose execution proceedings being taken out partly for their own benefit or to resist the transfer of their co-decree-holder's interest to a third party.

13. No doubt, they were interested in any settlement of the amount for which the decrees were executable and the properties liable to be sold in execution and if they had then had notice that these matters were about to be determined, they might have come to Court and insisted on their objections being heard under the proviso to Rule 16 of Order 21 and might hare applied to the Court for in order under Rule 15(2) for the protection of their interests. But the notice, dated November 3rd, which was sent to them did not contain any indication that the Court was going to decide any questions as to the satisfaction of the decrees or as to priority of the decree-holder's claims. This being so, they are not estopped in these subsequent proceedings from disputing their co-decree-holders claims to execute the whole of the decrees against any of the judgment-debtor's properties. See Narayana Pattar v. Gopalakrishna Pattar [1904] 28 Mad. 255. We are unable to support the learned District Judge's opinion that they are barred by res judicata from reopening what was decided in his predecessor's orders of August 20th. We have read the District Judge's two orders of that date. We do not find that they contain any final determination of any matter which was directly and substantially in issue between the respondents and these appellants in those proceedings: Compare A.A.A.O. No. 24 of 1921 on the file of the High Court.

14. We must therefore set aside the rejection of these applications on the bar of res judicata and remand them to the lower Court for determination on the merits after finding to what extent the decrees now sought to be executed hare been already satisfied and for passing such orders as may be necessary under Order 21, Rules 15 and 16, for the protection of their interests. Costs to abide and to be provided in the final order.


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