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Divendro Nath Sanyal and ors. Vs. Tarruck Chunder Bhuttacharjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal831
AppellantDivendro Nath Sanyal and ors.
RespondentTarruck Chunder Bhuttacharjee and ors.
Cases ReferredBrojeswari Chowdhranee v. Tripoora Soonderee Debi
Excerpt:
execution - joint decree--payment out of court to one of several joint judgment-creditors--part satisfaction certified to the court--application for execution of full amount of decree--civil procedure code (act xiv of 1882), sections 244 and 258. - .....by the judgment-debtors of a large portion of the amount of the decree to one amongst several joint decree-holders, who also had certified the payment in the manner prescribed in section 258 of the civil procedure code. this individual did not profess to have received payment for the joint benefit of all the decree-holders; but claiming to be entitled to 12 1/2 annas share of the whole, represented that his claim had been satisfied.2. application was made by the other decree-holders for execution of the whole decree. they denied the right of behary lall to 12 1/2 annas share, or to any more than a small fraction of the decretal amount, and refused to recognize the payment said to have been made to him.3. the lower court was of opinion that a payment out of court could not be.....
Judgment:

Tottenham, J.

1. The cause of this appeal, which arises from the execution of a decree, is the refusal of the lower Court to recognize an alleged payment out of Court by the judgment-debtors of a large portion of the amount of the decree to one amongst several joint decree-holders, who also had certified the payment in the manner prescribed in Section 258 of the Civil Procedure Code. This individual did not profess to have received payment for the joint benefit of all the decree-holders; but claiming to be entitled to 12 1/2 annas share of the whole, represented that his claim had been satisfied.

2. Application was made by the other decree-holders for execution of the whole decree. They denied the right of Behary Lall to 12 1/2 annas share, or to any more than a small fraction of the decretal amount, and refused to recognize the payment said to have been made to him.

3. The lower Court was of opinion that a payment out of Court could not be recognized under Section 258 unless certified by all the decree-holders; and that a sharer in a joint decree could not be allowed to realize for himself separately. He, therefore, overruled the debtor's objection, and holding that it was unnecessary to decide to what extent the decree-holders were severally interested, he ordered the execution to proceed as for the whole amount. It has been argued before us for the appellants that the lower Court was wrong in holding that a certificate under Section 256 is of no effect, unless made by all the decree-holders in a case where there are several; that payment to one of several joint-creditors is in law payment to them all; and that at any rate the Court below ought not, on the present application, to have allowed the applicants to take out execution for more than their own share of the decree since Behary Lall admitted having received his share. In connection with this last point there has been some discussion, whether under Section 244 of the Code the amount of the respective shares of the several decree-holders is a question between the parties to the suit, i.e., plaintiffs and defendants, or is one between the plaintiffs themselves; and, if the latter, whether the Court can decide it in the execution proceedings.

4. To show that it is not essential that all the decree-holders must unite in certifying under Section 258 a payment made out of Court, the learned Advocate-General cited Ranee Nyna Kooer v. Doolee Chund 22 W.R. 77 and Brojeswari Chowdhranee v. Tripoora Soonderee Debi 3 C.L.R. 513. Certainly in these cases the Court did take into consideration the fact that payment had been certified under Section 206 of Act VIII of 1859 by one decree-holder.

5. In each of these cases one of the decree-holders had certified payment of the whole decree. In the first case this Court held that, under the circumstances, the remaining decree-holders ought not to be allowed to take out execution again, until they had satisfied the Court that they knew nothing of the payment; that if made it was a fraud upon them; and that the judgment-debtor was privy to the fraud.

6. In the second case also full payment had been certified; but on enquiry the Court disbelieved the fact of any payment at all: yet held that, inasmuch as the party certifying it was admittedly entitled to one moiety, the other decree-holder could not be allowed to execute the decree for more than the other moiety.

7. In both cases the Court recognized the validity of payments certified by one only of joint decree-holders. And whatever be the correct technical construction of Section 258, i.e., whether 'the decree-holders,' may be construed 'as any one amongst any number of decree-holders' it seems impossible to say that, so far as the undisputed share of the one who certifies is concerned, the Court would be wrong in giving credit to the judgment-debtor.

8. But I must say that I am disposed to think that, regard being had to the provisions of the General Clauses Act (which governs the present Code, though it did not touch Act VIII of 1859), the words 'the decree-holder' in Section 258 should be read in the plural in cases in which there are more decree-holders than one; and that, strictly, the Court ought not to recognize payments made out of Court, unless made and certified for the benefit of all, at least in cases where, as in this one, the extent of the shares is in dispute. I am rather strengthened in this view by the terms of Section 231.

9. That section provides that any one or more of joint decree-holders may apply for execution of the whole decree for the benefit of all. The Court may grant such application if it sees sufficient cause for doing so; but it must then pass some order for protecting the interests of the persons who have not joined in the application. Whereas then by this section the Court is not permitted to allow one of several joint decree-holders to obtain execution of the whole decree for his own individual benefit, it seems unlikely that it was intended that, under Section 258, the same Court should recognize the payment out of Court to one of several joint decree-holders for his own benefit, and not for the benefit of all, of any portion of the decree in excess of that to which he is undisputedly entitled. In the case cited above, Brojeswari Chowdhranee v. Tripoora Soonderee Debi 3 C.L.R. 513 this principle seems to have been adopted; for credit was given only for the amount of the acknowledged share of the decree-holder who had admitted having received the whole amount of the decree. And in another case Mahima Chandra Roy v. Pyari Mohan Chowdhry 2 B.L.R. Ap. 43 it was held that, although the decree had been fully satisfied by payment of the whole amount to one of two decree-holders, the other one was still entitled to re-open the proceedings, and take out execution for a moiety of the amount of the decree.

10. But in the case of Ranee Nyna Kooer v. Doolee Chund 22 W.R. 77 payment of the whole decree having been certified by one, the principal decree-holder, this Court would not suffer the other decree-holders to execute the entire decree.

11. The decided cases, therefore, do seem to establish this, that a judgment-debtor is entitled to credit for any sum paid bond fide to one of several joint decree-holders, and duly certified to the Court by the latter; and that the other joint-creditor cannot execute the decree for more than their own share.

12. This being so, I would hold in the present case that the lower Court was wrong in wholly ignoring the payment certified by the decree-holder Behary Lall. Whether the debtors are entitled to have credit for the whole of the sum certified, or for only a portion of it, will depend upon other considerations. It will depend partly upon the question whether payment to one joint decree-holder is good as against all; and partly on the question whether the Court in the execution proceedings can determine the shares of the joint decree-holders severally. As to the first question the Advocate-General's position is that in law the release of a debt by one of several joint-creditors is a release by all: and the case of Ranee Nyna Kooer v. Doolee Chund 22 W.R. 77. seems to affirm this principle in the absence of fraud. But the case of Mahima Chandra Roy v. Pyari Mohan Chowdhry 2 B.L.R. Ap. 43 directly ignores the principle; while the case of Brojeswari Chowdhranee v. Tripoora Soonderee Debi 3 C.L.R. 513. neither affirms nor contradicts it; for it was held that no payment had been made at all. Apparently then the lower Court could not properly dispose of the judgment-debtor's objection in this case, and order execution in favour of the decree-holders who applied for it, without deciding first, whether the payment to Behary Lall was a fraud upon them committed by the judgment-debtors, and next what amount they were entitled to have out of the whole decree. This last question is, no doubt, one that is between Behary Lall and the other decree-holders; and as such may not be one which the Court should decide in the execution proceedings. But it is not necessary to decide whether the Court has jurisdiction to decide the point as between the decree-holders; for it is obviously also a question, and the main question between the applicants for execution and the judgment-debtors: and as such it clearly comes within the scope of Section 244.

13. Shortly stated, the question is for what amount are the applicants entitled to have execution? And this question it is necessary for the Court executing the decree to determine under Section 244, it being clear that Behary Lall's share at least has been paid off.

14. I would, therefore, allow this appeal; and, setting saide the lower Court's order, would send the case back to have the question determined.

McDonell, J.

15. I concur in the order of remand and for the reasons given by my learned colleague. The appellant will be entitled to five gold mohurs as costs of this appeal.


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