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Hemendra Nath Roy Chowdhury Vs. East Bengal Commercial Bank, Mymen-singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal210
AppellantHemendra Nath Roy Chowdhury
RespondentEast Bengal Commercial Bank, Mymen-singh and ors.
Cases Referred and Jahar Lal Saha v. Lalita Sundari Dassi
Excerpt:
- .....judge has rejected the application under section 73 on the ground that the judgment-debtors in the decree obtained by opposite party 1 are not the same as in the decree obtained by the petitioner and opposite parties 6 and 7.2. now judgment-debtor means any person against whom a decree has been passed: section 2, c i. 10, civil p., c. the word 'person' has not been defined in the code. the definition of 'person' in the general clauses act (act 10 of 1897) throws no light on the present question. person in law does not simply mean a human being. there may be persons in law who are not human beings, e.g., a joint stock company or a municipal corporation. again a human being may have a double personality. he may be one man but two persons in the eyes of the law. in order to give a man.....
Judgment:

Nasim Ali, J.

1. The petitioner and opposite parties 6 and 7 obtained certain money decrees against opposite parties 2 to 5 personally. Opposite party 1 sued them for a debt incurred by their father Prosanna Krishna Saba and obtained a decree against them on 13th February 1935. In execution of the decree certain properties belonging to Prosanna Kumar have been sold. The petitioner and opposite parties 6 and 7 applied for rateable distribution of the same proceeds under Section 73, Civil P. C. The learned Subordinate Judge has rejected these applications. This rule was thereupon obtained by the petitioner. Opposite party 1 opposed this rule, while opposite parties 6 and 7 supported the rule. The learned Subordinate Judge has rejected the application under Section 73 on the ground that the judgment-debtors in the decree obtained by opposite party 1 are not the same as in the decree obtained by the petitioner and opposite parties 6 and 7.

2. Now judgment-debtor means any person against whom a decree has been passed: Section 2, C I. 10, Civil P., C. The word 'person' has not been defined in the Code. The definition of 'person' in the General Clauses Act (Act 10 of 1897) throws no light on the present question. Person in law does not simply mean a human being. There may be persons in law who are not human beings, e.g., a Joint Stock Company or a Municipal Corporation. Again a human being may have a double personality. He may be one man but two persons in the eyes of the law. In order to give a man double personality, he must possess two different capacities so that in one capacity he may have legal relations with himself in his other capacity (Salmond's Jurisprudence, p 278, Edn. 5). It is argued on behalf of opposite party 1 that if one decree is obtained against a man as heir of a deceased person and another decree against him in his personal capacity, the two decrees are not against the same judgment-debtors within the meaning of Section 73, Civil P. C. This contention is based on a ruling of the Allahabad High Court in Bholanath v. Maqbukun-nissa (1903) 26 All 28, in which it was held that a decree obtained against a man as heir of a deceased person is different from a decree against him in his personal capacity, and the two decrees are not against the same judgment-debtor within the meaning of Section 295 of the Code of 1882. This ruling was followed in Toola Ram v. Abdul Gafur 1914 L B 191, Munshi Lal v. Section Mohammad Amir Mirza Beg 1919 Oudh 326 and Abdulla v. Abdul Latif Sahib 1920 Mad 403.

3. The principle underlying the decision of the Allahabad High Court is that the assets of a deceased person are liable in the first place to satisfy the debts of the deceased and, subject thereto, belong to the heir inasmuch as the debts constitute a general charge upon the assets although such a general charge would not defeat a bona fide purchaser or mortgagee from the heir. It was observed in that case that it would be inequitable to make one man's property pay the debt of another. It appears therefore that the nature of the liability under the decree was taken as one of the essential conditions for the application of Section 295 of the old Code. In the Code of 1908 for the words 'decrees for money' 'the decrees for the payment of money passed' have been substituted. Now the provisions of Section 73 of the Code which have replaced Section 295 bearing on the question before me are as follows:

Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for 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 distributed among all such persons.

4. In Balmer Lawrie & Co. v. Jadunath Banerjee 1915 Cal 658 this Court observed:

It is essential for the application of the section that the decree should have been passed against the same judgment-debtor. This has been made clear beyond possibility of dispute by the introduction of the word 'passed' which did not find a place in Section 295 of the Code of 1882.

5. In Govind Abaji v. Vinayak (1901) 25 Bom 494, Jenkins, C. J., observed:

6. It is useless to speculate as to any other test than that which the section (295 of the Code of 1882) itself provides and that test is stated in the 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 Bhati Babaji Jangam and the other is against his son Kashinath. It is true that the second decree is expressed to be against Bhau Babaji Jangam, deceased by his son Kashinath, but this incorrect mode of expression can make no difference. It is due to the erroneous practice which prevails in the mofussil Courts of the Presidency according to which a dead man is expressed to be a party to a suit by his heir. ... A dead man cannot be a party to a suit. It cannot too in this case make any difference that the decree is expressed further to be 'against the deceased's estate:' that does not make Bhau, a judgment-debtor in respect of a decree in a suit commenced after his death. The interpretation of judgment-debtor in Section 2 and the phraseology of Section 234 (Section 50 of the Code of 1908) of the Civil Procedure Code leave no doubt on the point.

7. In the same case Chandavarkar, J., has observed that 'Section 295 does not make the nature of liability under the decrees contemplated by it one of the essential conditions for the application of the section.' In Srinivas Aiyangar v. Kanthimathi Ammal (1910) 33 Mad 465 it was laid down that the decree against the legal representatives of a deceased person is not against the estate of the deceased but the legal representatives are judgment-debtors within the meaning of Section 295. In Jahar Lal Saha v. Lalita Sundari Dassi 1930 Cal 454, Rankin, C. J., followed these rulings. The decree obtained by opposite party 1, the judgment-debtors, are described as follows: on the death of Prosonna Kumar Saha his sons and heirs, Surendra Narayan Saha, Upendra Narayan Saha, Jatindra Narayan Saha and Narendra Narayan Saha. In the other decree the same men are mentioned without the words 'on the death of Prosonna Kumar Saha, his sons and heirs.' All the decrees in this case are against the same man. The judgment-debtors in the decree obtained by opposite party 1 can be said to be different from those in other decrees only on the principle that Prosonna Kumar Saha or his estate is judgment-debtor in the decree of opposite party 1. In view of the principle laid down in Govind Abaji v. Vinayak (1901) 25 Bom 494, Srinivas Aiyangar v. Kanthimathi Ammal (1910) 33 Mad 465 and Jahar Lal Saha v. Lalita Sundari Dassi 1930 Cal 454, I am not prepared to hold that the judgment-debtors in the decree of opposite party 1 are different from those in the decrees obtained by the petitioner and opposite parties 6 and 7. They are the same judgment-debtors within the meaning of Section 73 of the Code. The rule is therefore made absolute with costs to be paid to the petitioner by opposite party 1. The order of the learned Subordinate Judge rejecting the applications of the petitioner and opposite parties 6 and 7 are set aside. The learned Subordinate Judge is directed to distribute the assets rateably amongst the petitioner and opposite parties 4, 6 and 7 according to law. The hearingfee is assessed at 3 gold mohurs.

Henderson, J.

8. I agree.


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