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1952 DIGILAW 73 (MP)

Abdul Majid v. Pachhatarsingh

1952-07-21

SATHEY

body1952
ORDER : 1. This is judgment-debtors' appeal against the order dated 25-5-51 in First Appeal No.39 of 1951, allowing respondent-decree-holder to execute a decree against them. 2. The admitted facts are that Jawaharsingh and Pachhatarsingh two brothers obtained a joint decree for Rs.6000 and odd with some terms including an exigibility clause and fixing rate of interest on default attached, against the four appellants. On 8-7-50 Jawaharsingh alone and the four judgment-debtors appeared in the Court and prayed for certifying a payment and adjustment of the decretal claim in full satisfaction of the decree. Pachhatarsingh was not a party nor did even Jawaharsingh profess to have acted as manager or for the benefit of both the decree-holders. The Court, without examining the question, passed an order of certification as prayed for, on 10-7-50, under O.21, R.2, Civil P.C. 3. A few days later the other decree-holder the present respondent applied for execution of the decree for recovery of his share of the amount due and the judgment-debtors objected to it on the ground that one of the joint decree-holders alone could not execute the decree and that the decree-holder should have got the order set aside by an appeal. Both the Courts below overruled these objections and allowed the execution to proceed and hence the appeal again. 4. The first question that arises is whether the order of certification should have been set aside by the decree-holder who now sought execution. This contention has absolutely no substance in view of the fact that, as would be shown later, his interests were not affected by that order to which he was not even a party. On a technical point of view, it could be even said that Pachhatarsingh had not even 'locus standi' to go up in appeal against that order. It was urged that the record of the Court showed that the decree was fully satisfied. It must, however, appear that the circumstances, under which that record was made, clearly indicate that Pachhatarsingh could not be bound by that order. The question referred to above is, therefore, answered in negative. 5. The next and most important point is whether the order of certification was binding on the respondent and as such he could not proceed to execute the decree. The question referred to above is, therefore, answered in negative. 5. The next and most important point is whether the order of certification was binding on the respondent and as such he could not proceed to execute the decree. In Inderdawan Singh v. Jairaj Singh, AIR 1941 Oudh 336, it was held that: "A payment by the judgment-debtor to one of several joint decree-holders is not binding on others, unless the decree-holder to whom the payment is made represents the other decree-holders in some way or the other." In this case the decision in Jhakhri Gope v. Phagu Mahlo, AIR 1927 Pat 329, in which the payment was made to the Karta of the family was held binding on all the other decree-holders who were members of the family, is explained. In Adikendo Panigrahi v. Yetinraju Narayanasivami, AIR 1943 Pat 188, it is held that: "It is act open to one of the two joint holders of a decree to certify satisfaction of the whole decree so as to bind the other decree-holder, although he can certify satisfaction in respect of his own interest in the decree. Therefore, an order recording full satisfaction is not binding on the rest." In Fatimabi v. Mt. Tukabai, AIR 1945 Nag. 95 : ILR (1945) Nag. 242, it is held relying on a previous decision of the same Court in Ramkrishna v. Shankar, AIR 1935 Nag 25 that : "Payment made to one decree-holder is not binding on the other joint decree-holders." In Shital Prasad Singh v. Surendra Nath, AIR 1950 Pat 253 , is found an observation on the consequence of the judgment-debtors' entering satisfaction of one of the joint decree-holders, viz.: "Where in execution proceedings the judgment-debtors enter into negotiations for compromise with one of the decree holders, who has no authority to represent the other decree holders, the judgment-debtors act at their own risk and if there is any loss it must fall on them and not on the innocent decree-holders." 6. In Mahomed Silar Sahib and Co. In Mahomed Silar Sahib and Co. v. Nabi Khan Sahib, AIR 1917 Mad 988, which was a case of partnership and the rights of partners, it was observed that : "A payment of the amount of a decree to two out of three joint decree-holders cannot be treated as a satisfaction of the decree even in part, unless it is admitted by the third decree-holder or unless it is proved that he and the other two decree-holders to whom the money was paid, own separate and definite shares in the joint decree debt." It was further observed that : "Payment to one or more joint decree-holders will bind the rest if they were constituted as agents by the latter, but the status as such agent must either appear expressly in the decree or should be expressly created after the passing of the decree, and cannot merely be inferred from the position of the payee as managing member of the joint Hindu family of the decree-holders or as one of several partners decree-holders." This decision was somewhat discounted by a recent decision in Hanumanthappa v. Seethayya and Co., AIR 1949 Mad 790 (FB), by a majority of Judges observing that : "Where a decree is passed in favour of a firm, a payment made outside Court to one partner decree-holder binds the other partners decree-holders provided that the other partners decree-holders would be at liberty to establish special circumstances why such payment should not bind them." It would appear that both these cases relate to a decree obtained by a firm of partners while there is absolutely no suggestion of a partnership in the case of Pachhatarsingh and the other decree-holder before this Court. A perusal of the plaint was sought by the learned counsel for the appellants though an executing Court cannot look behind the decree and even going to that objectionable length it was found that in para.2 of the plaint it was stated specifically that Jawaharsingh was too old and Pachhatarsingh carried on business of trade on behalf of the family. An attempt was made to urge that the document, on which ±he decree was obtained, was in favour of Jawaharsingh and therefore he alone could recover the amount or give valid discharge for it. An attempt was made to urge that the document, on which ±he decree was obtained, was in favour of Jawaharsingh and therefore he alone could recover the amount or give valid discharge for it. The argument enters into a vicious circle and can be silenced by a query that if Jawaharsingh had the full authority to act, why was Pachhatarsingh joined at all or an observation that the joinder of Pachhatarsingh indicated the intention that not merely Jawaharsingh but also Pachhatarsingh had a right to and a share in the money. 7. In Kartarsingh Chattar Singh v. Gurdial Singh, AIR 1942 Pesh 58, a clear instruction is given to the executing Court indicating the intention of the legislature that the execution Court should keep an eye on the way the decree is satisfied and that in the case of a joint decree interests of all the decree-holders should be protected by the execution Judge. It follows that a joint decree-holder cannot give a discharge for the decretal amount to the detriment and without the knowledge of the other decree-holders. The decision goes even further to the other extreme laying down that in the case of joint decree-holders when there is no specification of the shares in the decree one decree-holder cannot separately settle up with the judgment-debtor even so far as his share of the decree is concerned. This latter part of the question does not, however, arise in the case on hand as it has been conceded by Pachhatarsingh in his application for execution itself which limits the claim to recovery of only his half share in the amount due. 8. The decision in Ghulam Muhammad v. Sohna Mal, AIR 1927 Lah 385 and Ram Prakash Chada v. Jodh Singh, AIR 1942 Lah 280, are in respect of a discharge by one of the members of the family which constituted a joint Hindu family firm and it was held that : "even one partner can give a valid discharge with however an important qualification viz : that the decree should have been obtained in the name of the firm." These two cases also do not apply to the case on hand. 9. 9. The examination of the whole law on the point in question clearly establishes that Jawaharsingh could not alone give a valid discharge in respect of the whole decree and that Pachhatarsingh bad a right to ignore the entry of full satisfaction made at the instance of Jawaharsingh and the judgment-debtors, and as such could proceed to execute the decree in so far as it related to his share of the amount due together with all the terms attached. The result is that the appeal must fail. It is accordingly dismissed with costs and the appellants shall bear the costs of the respondent in this Court also. Counsel's fees for each side would be Rs.50 if certified as required. Appeal dismissed.