Research › Browse › Judgment

Kerala High Court · body

1959 DIGILAW 269 (KER)

Kuruvila v. Gopalan Narayana Panicker

1959-09-02

ANNA CHANDY, SANKARAN

body1959
Judgment :- 1. The 4th defendant has preferred this appeal against the lower court's order overruling his objections to the execution petition filed by the 18th defendant. 2. Defendants 1 and 2 had conducted a chitty in which the 18th defendant was also a subscriber. The chitty was regularly conducted only for a few instalments and thereafter the chitty collapsed on account of the default of the foremen. A subscriber to whom money was due, instituted the suit. Since the other subscribers to whom money was due from the chitty were also entitled to the money due to them, they were also impleaded as additional defendants. In fact, the suit was treated as an administration suit and by the ultimate decree that was passed in the case, the claims of all the subscribers were upheld and they were allowed to claim their amounts out of the funds that may be realised in execution of the decree. In the nature of the decree, any of the subscribers seeking to execute the decree could do so only on behalf of all the subscribers to whom money was due from the chitty. Execution was thus carried on by one or the other of the subscribers at different stages. The present execution petition filed by the 18th defendant is also a step in that direction. The 4th defendant, who is a brother of defendants 1 and 2, raised several objections to the sustainability of the 18th defendant's execution petition. The lower court by its order under appeal found that these objections are untenable. 3. One of the objections pressed in this appeal is that the decree schedule item ]5 which belongs to the 4th defendant, cannot be proceeded against in execution of the decree in this case. According to the 4th defendant, items 12,14 and 15 belong to him and since he is not one of the foremen of the chitty and since there is no decree against him, these items are not liable to be sold in execution of the present decree. It is no doubt true that the 4th defendant, who is a brother of defendants 1 and 2, is not one of the foremen of the chitty and he is not a judgment-debtor in this case. On the other hand, he was also in the suit as one of the subscribers to whom money was due. It is no doubt true that the 4th defendant, who is a brother of defendants 1 and 2, is not one of the foremen of the chitty and he is not a judgment-debtor in this case. On the other hand, he was also in the suit as one of the subscribers to whom money was due. All the same, it has to be remembered that items 12,14 and 15 had also been given as security for the proper conduct of the chitty started by defendants 1 and 2 and it was on that basis that a decree was passed in this case against all the plaint items including these 3 items. If the 4th defendant had any case that these items cannot be made liable for the amount due to any of the subscribers, he ought to have agitated that matter at the trial stage. The decree, as it stands, was passed with this defendant also on record, and hence he is bound by the decree and it is not open to him to contend at the execution stage that item 15 is not liable for the decree debt. The lower court was, therefore, right in overruling the 4th defendant's objection that item 15 is not liable for the decree debt. 4. Then there is the objection that the present execution petition is barred by limitation. The basis of this objection is that the steps in execution taken by the other subscribers will not enure to the benefit of the 18th defendant so as to keep the decree alive for his benefit. We see no force in this contention. As already stated, the decree in this case is a composite decree in favour of all the subscribers and execution by any one of them would be on behalf of all the subscribers and for the benefit of all of them. It follows, therefore, that steps in execution taken by any one of the subscribers would be sufficient to keep alive the decree for the benefit of all. It is not disputed that there have been such steps in execution at different stages so as to keep alive the decree. It follows, therefore, that steps in execution taken by any one of the subscribers would be sufficient to keep alive the decree for the benefit of all. It is not disputed that there have been such steps in execution at different stages so as to keep alive the decree. The mere fact that the 18th defendant had not filed a separate execution petition within the period of limitation, is of no consequence in the nature of the present decree Execution cannot be said to be barred by limitation since there have been execution applications by one or the other of the subscribers within the period of limitation. Thus there is no substance in the plea of limitation raised by the 4th defendant. 5. The 18th defendant's right to execute the decree is also questioned by the 4th defendant. The contention is that there is no executable decree in favour of the 18th defendant. The final decree in the case is that passed by the appellate court and therein it is expressly stated that the 18th.defendant is entitled to prove his claim in execution and to draw the amount due to him out of the amounts that may be realised in execution of the decree. It is also provided in the decree that in case the other subscribers to whom money is due are not proceeding with the execution of the decree, the 18th defendant will be at liberty to take the necessary steps to realise the amount due to him. In the face of this clear provision made in the final decree, there is no substance in the objection that the 18th defendant is not entitled to take out execution. 6. The 4th defendant has also raised a contention that no amount is really due to the 18 defendant. It is conceded that the 18th defendant is a subscriber who bad been regularly paying up the subscriptions up to the time of the collapse of the chitty. He had taken other tickets in the chitty conducted by defendants 1 and 2 and had prized those tickets. Ext. A is the security bond executed by him when the prize amount was received. The sub-criptions which he had paid up to the date towards the ticket which he had taken in the present chitty, have also been given as security under Ext. Ext. A is the security bond executed by him when the prize amount was received. The sub-criptions which he had paid up to the date towards the ticket which he had taken in the present chitty, have also been given as security under Ext. A. Thus there is no scope for dispute about those subscriptions specified in Ext. A. The only dispute is about the subscription alleged to have been paid at the next instalment when the chitty collapsed. According to the 18th defendant, he had paid the subscription for this instalment also. In his execution petition the amount claimed by him is inclusive of the subscription paid for this particular instalment also. There has been no statement by the foremen that the 18th defendant had not paid the subscription for all the instalments as mentioned in his execution petition. The chitty receipt book in the name of the 18th defendant was handed over to the foremen along with Ext. A, and it is in their possession. According to the 18th defendant, that book contains the entries regarding all the payments made by him. The foremen have not cared to produce that receipt book or the chitty accounts. Under these circumstances, the lower court was right in believing the 18th defendant's statement that he had paid the subscriptions for all the instalments as mentioned in his execution petition. Since he was bound to pay the subscriptions due under the other tickets which he had already prized, he was obliged to deduct the subscriptions due from him towards those tickets out of the paid-up subscriptions due to him in the present chitty. He has filed a statement showing those respective amounts and also the balance due to him after a mutual set off. The 4th defendant has not been able to point out any mistakes in the calculation made in that statement. Since the 18th defendant had to pay subscriptions due under the prized tickets only on the respective dates when such subscriptions became due and since he was making an adjustment by way of set off, he has deducted 12% interest for the period from the date of the set off to the dates of the respective instalments, and the balance alone has been taken into account for the purpose of the set off. In other words, the amount shown as due for each instalment together with 12% interest from the date of the statement up to the date of instalment, will be equal to the full amount of the subscription due for the particular instalment. This mode of calculation is seen to be correct. The 4th defendant's objection is that the 18th defendant is not entitled to make a deduction on the basis of 12% interest. We think that it is only just and proper that interest at the same rate of 12% should be allowed both on the amounts due to the 18th defendant and also on the amount due from him when a mutual set off is made for the purpose of ascertaining the balance. Accordingly we accept the statement made by the 18th defendant as correct and hold that the balance shown therein is the amount due to the 18th defendant. He is therefore entitled to execute the decree for realising that amount. 7. Lastly an argument was advanced on behalf of the 4th defendant-appellant that he is entitled to the reliefs under the Kerala Agriculturists' Debt Relief Act (Act XXXI of 1958). For getting such a relief he has to make out that all the requirements contemplated by that Act are satisfied in respect of this particular debt. He has to agitate that matter by filing a separate application under that Act and hence we are not expressing any opinion in this appeal on the question whether he is entitled or not entitled to any of the reliefs under Act XXXI of 1958. 8. In the result this appeal is dismissed with costs. Dismissed.