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Madhya Pradesh High Court · body

1959 DIGILAW 274 (MP)

Dayaldas v. Tikamdas

1959-10-19

P.V.DIXIT

body1959
ORDER P.V. Dixit, C.J. 1. This is an appeal by the judgment-debtor against an order of the Additional District Judge of Khandwa rejecting his application that the respondent decree-holder No.1 was not competent to file an application for execution for recovery of the entire decretal amount and that the application filed by him was beyond time. 2. The material facts are that on 10th August 1948 a mortgage-decree in favour of the respondents Nos. 1 to 5 and against the judgment-debtor appellant and Sheikh Kalu (Respondent No. 8) was passed by this Court. By that decree. Rs. 11699-4 o were payable to the respondent decree-holders Nos. 4 and 5 (who will be hereafter referred to as the first set of decree-holders), and an amount of Rs. 6784-14-6 was made payable to the respondents Nos. 1, 2 and 3 (who will be hereafter referred to as the second set of decree-holders). Two applications for the execution of the decree were filed, one in 1951 and the other in 1952. Thereafter on 16th July 1953, the first set of decree-holders applied for execution of the decree claiming recovery of not only the amount to which they were entitled but also the amount payable to the other set of decree-holders by the sale of the mortgaged property. It appears that no notice of this application could be served on the second set of decree-holders. But the application for the execution of the whole decree for the benefit of all the decree-holders was held to be competent. On 26th February 1954 the judgment-debtor Dayaldas filed an application under the Temporary Postponement of Execution of Decrees Act for the postponement of the execution of the decree which was granted. Thereupon the application for execution presented on 16th July 1953 was dismissed. Subsequently on 20th December 1956 Tikamdas of the second set of decree-holders filed the application for execution in question for recovery of the entire decretal amount by the sale of the mortgaged property. On 12th February 1957 he made an application under O. 21, R 15, C. P. C. for being allowed to execute the whole decree for the benefit of all the decree-holders. The lower court allowed this prayer of the present applying decree-holder on 12th February itself. On 12th February 1957 he made an application under O. 21, R 15, C. P. C. for being allowed to execute the whole decree for the benefit of all the decree-holders. The lower court allowed this prayer of the present applying decree-holder on 12th February itself. The judgment-debtor appellant then raised the objections that the decree not being a joint decree within the meaning of O. 21, R. 15 C. P. C., the second set of decree-holders could not execute the whole decree for the benefit of all the decree-holders, and that application dated 20th December 1956 for execution of the decree to the extent of their separate interest was barred by time as it was not filed within three years of the date of the final order passed on their previous application. The execution Court rejected both these objections. It held that the leave granted to Tikamdas of the second set of decree-holders on 28th February 1957 could not be rescinded and that he was entitled to execute the whole decree for the benefit of all the decree-holders. On the question of limitation, the executing Court held that the judgment-debtor Dayaldas did not object in the execution proceedings initiated on the application dated 16th July 1953 of the first set of decree holders that they could not execute the decree for the entire amount and that, therefore, he was precluded by the principle of res judicata from raising such an objection in the present proceedings and the execution application in question was within three years from 26th February 1954, the date on which the application dated 16th July 1953 was dismissed. 3. 3. Shri Choubey, learned counsel appearing for the appellant, contended that as the decree under execution determined the amount payable to the two sets of decree-holders separately, it was not a joint decree for purposes of O. 21, R. 15, C. P. C.; that, therefore, it was not open to anyone of the second set of decree-holders to apply for execution of the whole decree for the benefit of all the decree-holders; that they could apply for execution to the extent of their interests; that as their present application was filed more than three years after the final order on the previous application filed by them it was barred by time; and that in the immediately previous execution proceedings initiated on the application dated 16th July 1953 of the first set of decree-holders no order for execution was made and, therefore, the omission of the judgment-debtor to object to the competency of the application for execution of the whole decree by the first set of decree-holders in 1953 in those proceedings could not preclude him from raising the objection as to limitation in the present proceedings. 4. In reply, Mr. Razak, learned counsel for the respondent Tikamdas, said on the authority of Shri Chandra Chur Deo vs. Musammat Shyam Kumari I.L.R. 11 Pat. 445 & Kanak Prova Debt vs. Dhirendra Nath Roy A.I.R. 1928 Cal 861 that though the shares of the two sets of decree-holders were determined by the decree, it was none the less a joint decree and the second set of decree-holders were competent to execute that decree under O. 21, R. 15, C. P. C. for the benefit of all the decree-holders and that the judgment-debtor's omission to object to the maintainability of the application for execution of the whole decree filed by the first set of decree holders in 1953 operated as resjudicata. 5. In my judgment, this appeal must be dismissed. The main question that arises for determination in this appeal is whether the decree under execution is a joint decree or is a decree passed severally in favour of the two sets of decree-holders distinguishing moneys payable to each of them so that it really comprised of two decrees. It is no doubt true that by the decree passed by this Court on 10th August 1948 Rs. 11699-4-0 were made payable to one set of decree-holders and Rs. 6784-14-6 to the other side. It is no doubt true that by the decree passed by this Court on 10th August 1948 Rs. 11699-4-0 were made payable to one set of decree-holders and Rs. 6784-14-6 to the other side. But this determination of the shares of the decree-holders in the decretal amount does not in the instant case destroy the joint character of the decree. The jointness of the decree consists in the fact that it was a mortgage decree declaring Rs. 18484-2-6 as the unit of mortgage money due and indicating the source of realisation of money, namely, the entire mortgaged property. The decree was really one decree, and the whole of the mortgage amount, that is Rs 18484-2-6, was to be recovered by the sale of the entire mortgaged property on the default of the mortgagors to redeem it within the fixed time. It is not as if certain amount of mortgage money was declared due to one set of decree-holders and its recovery indicated by the sale of certain specific property, and similarly the mortgage amount due to the other set of decree-holders was distinguished and the property against which they were entitled to proceed was also distinguished. In the decision of the appeal in which the decree under execution was passed, it was distinctly pointed out that the mortgage-deed in suit did not comprise of two independent mortgagees and that there was no conveyance of the same property in favour of two persons as tenants-in-common but that the mortgagees in the suit were joint tenants. The decree of the High Court first declared a total amount of Rs. 18484-2-6 as the mortgage amount due to the mortgagees. It then proceeded to indicate specifically the amount payable to each set of decree-holders and then contained the direction that in the event of the mortgagors making a default in the payment according to the decree, the plaintiffs, that is the mortgagees, may apply to the Court for a final decree for the sale of the property. The governing note of the decree is the realisation of the entire mortgagd amount declared due, that is to say the amount of Rs. 18484-2-6, by the sale of the entire mortgaged property in the event of the mortgagors failing to redeem it. The governing note of the decree is the realisation of the entire mortgagd amount declared due, that is to say the amount of Rs. 18484-2-6, by the sale of the entire mortgaged property in the event of the mortgagors failing to redeem it. In regard to that decree, it cannot be said that its effect is as if two separate and distinct mortgage decrees had been passed in favour of the two sets of decree-holders. The recovery under the decree is of the entire amount of Rs. 18484-2-6 and not of the amounts payable to the two sets of decree holders as two different units. If, as I think, the decree is a joint decree in favour of two sets of decree-holders, then the decree could be executed by either set of decree-holders under O,21, R 15, C.P.C. for the benefit of all the decree-holders and the application for execution of the whole decree made by one set of decree-holders keeps alive the decree for the benefit of the others also. Learned Counsel for the appellant conceded that if the decree was held to be a joint decree then he could urge nothing against the decision of the Additional District Judge of Khandwa. 6. In this view of the matter, it is unnecessary to consider the cases cited by the learned counsel appearing for the respondent Tikamdas in which the question whether a decree for costs made severally in favour of some persons was a joint decree for purposes of O. 21, R. 15, C.P.C. was considered. In is also not necessary to consider the question whether the judgment-debtors omission to object to the maintainability of the application for execution of the whole decree filed by the first set of decree-holders in 1953 precluded them from questioning the competency of the application for execution of the whole decree in the present proceedings. 7. For all these reasons, this appeal is dismissed with costs. Appeal dismissed.