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1971 DIGILAW 27 (GAU)

Mahamad Ali v. Haji Rashid Ali

1971-04-28

B.N.SARMA

body1971
The short question which requires determination in this mis­cellaneous second appeal arising out of an execution case, is whether some of the joint decree-holders can give a valid dis­charge on behalf of the remaining decree-holders relating to the shares of the latter in the decretal amount. The facts leading to the appeal, in brief, are as follows:- 2. 25 persons obtained a joint decree against 32 persons for an amount of Rs. 4491/- and odd plus costs of the suit. In the decree, the extent of liability of each of the judgment-debtors was specified but so far as the decree-holders are concern­ed, the decree was joint-their respective shares remaining unspecified. Later, 8 of the judgment-debtors including the appel­lants paid Rs. 1177/-, to the fullest extent of their liability, to 11 of the decree-hol­ders, namely decree-holders Nos. 13 to 23 and obtained a receipt from them. After this, the other decree-holders started the ins­tant execution case against all the judgment-debtors for realisation of a sum of Rupees 4466-75 P. inclusive of the proportionate costs, after deducting from the decretal amount a sum of Rs. 1177.18 P. i. e. Rupees 900/- of the decretal amount and Rupees 277.18 P. as proportionate costs, represent­ing the shares of the decree-holders Nos. 13 to 23 in the decretal amount. The eight judgment-debtors who made payment to decree-holders Nos. 13 to 23 then filed a petition under Order 21, Rule 2 of the Code of Civil Procedure to record satisfaction of the decree, so far as they are concerned, in view of the earlier payment made by them to 11 of the decree-holders. The executing decree-holders filed objection against this petition stating inter alia that the decreeholders Nos. 13 to 23 had no authority to give any discharge to the petitioners in res­pect of the shares of the other decree-hold­ers and that the receipt granted by them is not binding on other decree-holders. 3. The learned Sub-Judge, before whom the execution petition was filed, after hearing both the parties, allowed the peti­tion under Or. 21, Rule 2 and exempted the petitioners from payment of any further amount under the decree. The decree-hol­ders then preferred an appeal before the District Judge. 3. The learned Sub-Judge, before whom the execution petition was filed, after hearing both the parties, allowed the peti­tion under Or. 21, Rule 2 and exempted the petitioners from payment of any further amount under the decree. The decree-hol­ders then preferred an appeal before the District Judge. The learned District Judge held that some of the decree-holders are not authorised under the law to give a valid discharge with regard to any part of the decretal dues without a clear authority from the other decree-holders and that as such, the payment made to some of the decree-holders and the certificate of satisfaction obtained from such of the decree-holders is not binding on other decree-holders who can take out execution for realisation of the entire decretal amount. Being aggrieved by this order of the learned District Judge, four of the eight judgment-debtors, who resisted the decree, so far as they are con­cerned, in view of the earlier payment made by them, have come up with this second ap­peal. 4. The first contention of Mr. Bhattacherjee, the learned counsel for the appellants was that the learned lower ap­pellate Court erred in law by holding that some of the joint decree-holders alone can­not grant a valid discharge of the liabilities of the appellants under the decree. His second contention was that the execution petition of the decree-holders-respondents ought to have been held to be not main­tainable in law as the same was not filed by ah1 the decree-holders or for the benefit of all the decree-holders. 5. The learned counsel for the ap­pellants could not show me any authority in support of his contention that some of the decree-holders alone are competent to give a valid discharge on behalf of the Other co-decree-holders in the absence of any authority from such co-decree-holders. He sought to rely on the decision in Dhondhe Prasad v. Sewak AIR 1954 All 739 , but this decision clearly goes against him. It was held in this case that it is not open to one of the two joint decree-holders to certi­fy satisfaction of the whole decree so as to bind the other decree-holders, although he can certify satisfaction in respect of his own interest in the decree. The same view was taken in Adikundo Panigrahi v. Yetiraju Narayanaswami, AIR 1943 Pat 188 which was relied on in the former case. 6. The same view was taken in Adikundo Panigrahi v. Yetiraju Narayanaswami, AIR 1943 Pat 188 which was relied on in the former case. 6. The law is now almost well-settled that where the payment has been made outside the Court to one of the co-decree-holders who has a subsisting right, to the knowledge of the judgment-debtors, to represent other co-decree-holders by reason of his position under the substantive law as in the case of a Karta of a joint Hindu family or a partner of a firm, that payment and consequent certification or ad­justment would bind the rest of the decree-holders. On the other hand, if he is not entitled, so to represent, he cannot give a valid discharge, except to the extent of his own interest and cannot prejudicially effect the rights of others under the decree in any way. 7. The view of the learned District Judge that one or some of the decree-hol­ders are not authorised under the law to give valid discharge, with regard to any part of the decretal dues, unless there is clear authority from the other decree-hol­ders and that in case any of such decree-holders, without authority from others, rea­lises any part of the decretal amount, the others can take out execution for realisation of the entire decretal amount is, however, not tenable in law, in my opinion. As al­ready pointed out, there are authorities on the point that one of the decree-holders can give a valid discharge to the extent of his share in the decree and if that be so, the other decree-holders must give discount in respect of the share of such decree-holder in the decree and cannot proceed to realise the entire decretal amount, provided of course, the respective shares of different decree-holders is either admitted or not denied or is otherwise ascertainable. 8. In the present case, the respon­dents have themselves accepted this posi­tion by taking out the execution in respect of their proportionate share in the decree, having allowed due discount in res­pect of the shares of the decree-holders Nos. 13 to 23 who received some payment from the appellants. Their only contention is that decree-holders Nos. 13 to 23 were not competent to give full discharge to the appellants when the decree, so far as the decree-holders are con­cerned, is joint. 9. 13 to 23 who received some payment from the appellants. Their only contention is that decree-holders Nos. 13 to 23 were not competent to give full discharge to the appellants when the decree, so far as the decree-holders are con­cerned, is joint. 9. As regards the second conten­tion, namely that the respondents alone are not competent to put the decree into exe­cution, leaving out decree-holders Nos. 13 to 23, the learned counsel for the appellants placed reliance on the provisions of Rule 15 of Order 21 of the Code of Civil Procedure which runs as follows:- "Application for execution by joint holders- (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, un­less the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient cause for allowing the decree to be execut­ed on an application made under this rule, it shall make such order as it deem necessary for protecting the interest of the per­sons who have not joined in the applica­tion.'' 10. There is nothing in the above provisions which forbids some of the de­cree-holders to put the decree into execu­tion, if it is not for the benefit of all. It simply enables one or some of the decree holders to apply for execution of the whole decree for the benefit of all. There is no bar for some of the decree-holders to put the decree into execution in respect of their own shares in the decretal amount. Sub-rule (2) of Rule 15 provides for safeguarding the interest of the decree-holders who have not Joined in the application for execution. This view finds support from the decision in Taraknath v. Motilal, AIR 1928 Cal 559 and Kangal Chandra v. Nandalal, AIR 1934 Cal 465. It was held in these cases that if some of the joint decree-holders apply for execution with regard to certain portion of the decree giving up the rest, making the joint decree-holders parties to the applica­tion, who do not object to the application giving up the rest of the decree, the appli­cation is not liable to be dismissed. The Facts of the instant case are exactly similar. The Facts of the instant case are exactly similar. Here also, the respondents filed the execu­tion petition for a portion of the decree giving up a portion relating to the shares of the decree-holders Nos. 13 to 23 who have been joined in the execution petition as J. Ds and they have not raised any objec­tion. 11. As a result of the foregoing discussion, I find that the appeal is without any force and hence it is dismissed. In the circumstances of the case, I however leave the parties to bear their own costs. Appeal dismissed.