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1905 DIGILAW 214 (ALL)

Lachman Das v. Chaturbhuj Das

1905-12-14

BANERJI, RICHARDS

body1905
JUDGMENT : Banerji, J. This appeal arises out of an application made by two out of four decree-holders for execution of a decree passed in favour of four persons, who obtained probate of the Will of one Babu Raghunath Das. They made their application under the provisions of section 231 of the Code of Civil Procedure, alleging that the other decree-holders were unwilling to join in the application, and they prayed that the decree might be executed at their instance for the benefit of all the decree-holders. The decree was passed upon a compromise which provided that a receiver was to be appointed who should recover the amount of a certain other decree due to the judgment-debtors by a person whose estate was under the management of the Court of Wards. One of the conditions of the decree was that the judgment-debtors would be personally liable to satisfy the decree if they realised and appropriated any part of the money payable under the decree for which the Court of Wards was liable. It is contended on behalf of the appellants who are the judgment-debtors that they have not committed any breach of the condition of the decree, and that the decree-holders are not entitled to proceed personally against them. Upon this question we referred an issue to the Court below, and the finding of that Court is that the amount of the decree paid by the Court of Wards was in fact realised by the judgment-debtors themselves and not by the receiver appointed by the Court. We do not think it necessary to decide whether, in reality, the amount was withdrawn by Mathra Das, judgment-debtor. As a matter of fact, the cheque was made payable in his favour, and the money was drawn by him from the Bank. Upon the evidence we have little doubt that it was Mathra DAS who directed the disbursement of the money; but even if it be assumed that the money was disbursed by the receiver, it is clearly proved by the evidence that a large amount was paid over to Mathra Das, viz., a sum of Rs. 58,000. So that part of the amount of the decree which was to satisfy the decree in this case did go into the pocket of Mathra Das, and a breach of one of the conditions of the decree was thus committed. 2. 58,000. So that part of the amount of the decree which was to satisfy the decree in this case did go into the pocket of Mathra Das, and a breach of one of the conditions of the decree was thus committed. 2. It is next urged that this payment to Mathra Das was not made until after the decree in the present case had been satisfied by a payment made to Musammat Sarsuti Bibi, one of the decree-holders, and that under the terms of the compromise and the decree, the judgment-debtors were entitled to appropriate the surplus after the decree was satisfied. This leads to the question whether a payment was made to Sarsuti Bibi so as to satisfy the decree. Holding the view that we do upon the next question which arises in the case, we do not deem it necessary to decide, whether any payment was made to Sarsuti Bibi, though there are circumstances which render even this somewhat suspicious. Assuming that payment was made to Sarsuti Bibi as alleged, we are of opinion on the evidence that the payment was not made to her as decree-holder. She is alleged to be a beneficiary under the Will of Babu Raghunath Das. It seems that if any payment was made, it was made to her in her capacity as beneficiary. Even assuming again that the payment was made to her as one of the decree-holders, we are unable to hold that such payment can operate as a discharge of the decree against all the decree-holders. It has been held by this Court in Tamman Singh v. Lachman Kunwari, [1904] I.L.R., 26 All., 318 and Moti Ram v. Hannu Prasad, [1904] I.L.R., 26 All, 334, and it is not disputed that one of several decree-holders cannot give a discharge for the whole amount of the decree. It is, however, contended that the fact that the decree-holders in this case were executors makes a difference. We are unable to see that any such difference exists. The Code of Civil Procedure recognises no distinction between decree-holders who are executors and other decree-holders. Under section 231 one of several decree-holders may apply for execution for the benefit of all the decree-holders. We are unable to see that any such difference exists. The Code of Civil Procedure recognises no distinction between decree-holders who are executors and other decree-holders. Under section 231 one of several decree-holders may apply for execution for the benefit of all the decree-holders. The inference from the provisions of this section is irresistable that one of several decree-holders cannot give a full discharge for the amount of the decree, as held in the case to which we have referred. It is true that under section 92 of the Probate and Administration Act, 1882, one of several executors has the power to release a debt due to the deceased, but that can only be when the debt subsists as a debt due to the deceased and not when it has merged into a decree in favour of all the executors. We think the provisions of section 92 of the Probate and Administration Act do not help the appellants. As a discharge was not given by all the decree-holders and as payment was not certified by all of them, the payment to Musammat Sarsuti Bibi, if made at all, cannot exempt the appellants from liability to the respondents, the other holders of the decree. We are therefore of opinion that the Court below was right in granting the application for execution, and we accordingly dismiss the appeal with costs, including fees on the higher scale.