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2005 DIGILAW 672 (AP)

Damera Narsimha Reddy v. Syed Ibrahim

2005-07-25

L.NARASIMHA REDDY

body2005
( 1 ) DEBTOR No. 2 in E. P. No. 45 of 2001 on the file of the Principal District Munsif medak at Sangareddy, filed this Civil Revision petition. He challenges the order, dated 20-1-2005, whereunder the executing Court directed the sale of the property belonging to the petitioner. ( 2 ) RESPONDENTS 1 and 2 filed O. P. No. 314 of 1998 under Section 166 of the Motor vehicles Act, 1988, before the Motor accidents Claims Tribunal-cum-District judge, Medak at Sangareddy, (hereinafter referred to as tribunal) claiming compensation against the petitioner and the third respondent. They pleaded that their son by name Syed Nisar Ahmed died in an accident on 21-1-1997 involving a vehicle bearing no. AP-28/b-5646, owned by the third respondent-and driven by the petitioner. Through its order, dated 6-2-2001, the tribunal awarded a sum of Rs. 1,77,490/- as compensation and directed apportionment between the respondents 1 and 2. ( 3 ) THE third respondent is said to have paid a sum of Rs. 88,000/- to respondents 1 and 2, out of the Court. On receipt of the same, respondents 1 and 2 filed a memo, dated 10-7-2002, to the effect that their claim against the third respondent is satisfied and that they do not intend to press the E. P. against him. The executing Court recorded the same and closed the E. P. against the third respondent. ( 4 ) THE respondents 1 and 2 sought to proceed against the petitionerfor the balance of the decretal amount. The petitioner opposed the E. P. , stating that the liability fixed by the tribunal was joint and several against him and the third respondent and once the E. P. is closed against the third respondent, it enures to his benefit also. The executing Court did not agree with his contention and directed sale of properties of the petitioner to recover the balance of the decretal amount. ( 5 ) SRI N. S. Madhava Rao, learned counsel for the petitioner, submits that once the liability of the petitioner and the third respondent was joint and several, there was no justification for the executing Court, to proceed against the petitioner even after the E. P. was closed against the third respondent. ( 5 ) SRI N. S. Madhava Rao, learned counsel for the petitioner, submits that once the liability of the petitioner and the third respondent was joint and several, there was no justification for the executing Court, to proceed against the petitioner even after the E. P. was closed against the third respondent. He contends that the third respondent was vicariously liable to cover the obligation of the petitioner also, being the owner of the vehicle and viewed from any angle, the order under revision cannot be sustained. ( 6 ) SRI P. Venkat Reddy, learned counsel for the respondents 1 and 2, on the other hand, submits thatthe liability of the petitioner cannot be extricated on the ground that part of the decretal amount was paid by the third respondent. He further submits that though the petitioner was the driver of the vehicle, it emerged that he became the owner of the vehicle much before the accident occurred. ( 7 ) THE short question involved in this revision is as to whether the petitioner can be held liable to pay the balance of the decretal amount, even after the E. P. was closed against the third respondent. It is not in dispute that the tribunal held the third respondent and the petitioner jointly and severally liable, to pay the amount awarded by it. The petitioner filed E. P. No. 45 of 2001 against both the judgment-debtors. On receiving a sum of Rs. 88,000/-, obviously, representing half of the awarded amount or decretal amount, the respondents 1 and 2 filed a memo into the Court stating that they do not intend to press the E. P. against the third respondent. ( 8 ) THE concept of joint and several liability implies that the decree-holder can choose to proceed against all or any of the persons so held liable and, the discharge of the liability by one, would enure to the benefit of all others. Conversely, the satisfaction reported by the decree-holder in respect of one of the judgment-debtors must hold good for the others also. It is impermissible to divide the liability between such judgment-debtors. The liabilities under the decree, would subsist against all, till it is discharged but if one of them is discharged completely, rest of them stand on the same footing. Conversely, the satisfaction reported by the decree-holder in respect of one of the judgment-debtors must hold good for the others also. It is impermissible to divide the liability between such judgment-debtors. The liabilities under the decree, would subsist against all, till it is discharged but if one of them is discharged completely, rest of them stand on the same footing. The decree-holder does not have the liberty or the facility to divide the liability among the judgment debtors and choose to recover part thereof from the individual judgment-debtors. It would have been certainly possible for the respondents 1 and 2, to proceed against the petitioner, had his liability been joint, with that of the 3rd respondent, as distinguished from joint and several. ( 9 ) THE famous jurist, Chitty, in his treatise had aptly explained the distinquishing features of the three kinds of liabilities, viz. , several liability, joint liability, and joint and several liability, as under: "several liability arises when two or more persons make separate promises to another whether by the same instrument or by different instruments. Thus if A and B covenant with C that they will each pay him 100, each is liable to pay 100; their promises are cumulative and payment by one does not discharge the other. Joint liability arises when two or more persons jointly promise to do the same thing. There is only one obligation, and consequently, performance by one discharges the others. Joint liability is subject to a number of strict and technical rules of law which are discussed inthe paragraphs thatfollow. Joint and several liability arises when two or more persons in the same instrument jointly promise to do the same thing and also severally make separate promises to do the same thing. Joint and several liability gives rise to one joint obligation and to as many several obligations as there are joint and several promisors. It is like joint liability in that the co-promisors are not cumulatively liable, so that performance by one discharges all; but it is free from most of the technical rules governing joint liability. " ( 10 ) IN relation to discharge by performance, of a joint and several liability, he observed as under: "payment of the debt by any one of a number of joint or joint and several 1. Chitty on Contracts Vol. 1 Chapter 18 p. 947. " ( 10 ) IN relation to discharge by performance, of a joint and several liability, he observed as under: "payment of the debt by any one of a number of joint or joint and several 1. Chitty on Contracts Vol. 1 Chapter 18 p. 947. debtors operates as a discharge of all, for in neither case is the obligation cumulative" ( 11 ) IN the matter of discharge of contracts or decrees, where the liability is joint, as distinguished from joint and several, the discharge of one of the joint promisors, does not relieve the others, of their obligation. Section 44 of the Indian Contract Act is very clear on this aspect. It reads as under: sec. 44 Effect of release of one joint promisor:- Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or joint promisors; neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors. " ( 12 ) IT was judicially recognized that the principle underlying this section applies to decrees also. However, it would be confined to the liabilities, which are joint. Where, however, the liability fastened to thejudgment debtors is joint and several, the principle underlying that Section does not apply. The decree-holder will be entitled to proceed against all or any of such judgment-debtors. However, the discharge by one would enure to the benefit of all, and it axiomatically follows that the discharge of one of such judgment debtors need not be of payment of the entire decretal amount. It is impermissible to close the decree, or E. P. against some, and keep them alive against others. If a decree-holder extricates the liability against one of the joint and several judgment-debtors, he can be said to have brought an end to the entire decree. That is what exactly had happened in this case. ( 13 ) ONCE it had emerged that the respondents 1 and 2 have chosen to report to the executing Court full satisfaction vis-a-vis the third respondent and the E. P. is closed against him, the natural and logical consequence is that the decree as a whole stands satisfied and it does not survive to be proceeded against the other judgment-debtor namely the petitioner. ( 14 ) THERE is another issue in the matter. The petitioner was impleaded in the O. P. , as the driver of the vehicle, involved in the accident. It is well settled that the owner of the vehicle is vicariously liable for the fault if any, of the driver. Therefore, even otherwise, the petitioner cannot be held liable under the decree. ( 15 ) THEREFORE, the order under revision cannot be sustained and accordingly, the civil Revision Petition is allowed and the order under revision is set aside. No order as to costs.