C.S. NARAYANASWAMI IYER Vs. NARAYANA SARMA

JUDGEMENT

(1.) C.M.A. No. 299 of 1976 is filed against an order made in E.A. No. 368 of 1975 which was filed to transfer the decree for collecting the trial Court's costs from the plaintiff by the first defendant as provided in A.S. No. 443 of 1967 of the High Court. Madras. This application was ordered on the ground that the decree can be executed even though at the time when the decree was passed by the High Court, the 8th appellant who was the 10th defendant in the suit had died on 28th May, 1972 which was anterior to the disposal of the appeal an 9th August, 1973 and the legal representatives of the 8th appellant hat not been brought on record. The counsel for the appellant contends that the decree made in A.S. No. 443 of 1967 which was filed against O.S. No. 95 of 1965 was a joint and indivisible decree and the reliefs decreed being common, since the legal representatives of the 8th appellant had not been brought on record in time, the entire decree is a nullity and it is open to the appellant herein to plead in the execution proceedings that the decree is inexecutable. On the materials placed before the Court below, it is established that the 8th appellant died on 28th May, 1972, and this fact was not brought to the notice of the High Court when A.S. No. 443 of 1967 was taken up for hearing and disposed of on 9th August, 1973. The appeal was allowed and it was ordered therein that the plaintiff is liable to pay the costs of the defendants. The contention is that when the entire decree cannot be executed, there can be no question of realisation of costs by the first defendant alone, even though in the decree made by the High Court, the costs payable to the respective defendants had been separately provided for. In support of the contention that even in Executing Court, it is open to a party to plead about nullity of a decree, he relies upon the decision in Sunderdass v/s. Ram Prakash : [1977] 3 SCR 60 and Hiralal Panti v/s. Sri Kali Nath : [1962] 2 SCR 747. In the last of these decisions, it has been held that the executing Court can go into the question of finding out whether the decree had been passed by Court without jurisdication which may be pecuniary or territorial or in respect of the subject -matter, which would strike at the very authority of the Court to pass the decree But the decision entered in Sunder dass v/s. Ram Prakash : [1977] 3 SCR 60 is to the effect that an executing Court cannot go -beyond the decree, nor can it question it's legality or correctness, but there is one exception to this general rule which would be on the ground that the Court had no inherent jurisdiction to pass the decree. Hence before the executing Court it can be shown that the decree was a nullity and therefore it cannot be executed. In this case, 8th appellant was dead at the time when the decree was passed by the High Court and therefore it is contended that the decree passed as against a dead person will be a nullity and it being a general and indivisible one, it cannot be executed even as against the first defendant. Hence the next aspect to be considered is whether the decree that has been passed is a joint and indivisible one. For this, counsel for the appellant refers to the decision in The State of Punjab v/s. Nathu Ram : [1962] 2 SCR 636 wherein it has been held that when a decree is a joint and indivisible one, it will have to be dismissed if the appeal had become abated as against one of the parties and the legal representatives have not been brought on record in time. In the absence of one joint -decree holder, the appeal is not properly framed, and hence as against the surviving decree holders, it cannot be proceeded with. Thereafter he refers to the decision in Rameshwar v/s. S.B. Jagannath : [1964] 3 SCR 549 wherein also it has been held that if pending an appeal, one of the appellants dies and the legal representatives have not been brought on record the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant and therefore the appeal of the deceased appellant abates and does not proceed any further. Reference is also made to the decision in R.P. Gupta v/s. Murli Prasad : [1973] 1 SCR 63 which deals with a case of partnership wherein it has been held that the Court's will not proceed with an appeal when the success of the appeal may lead to the Court's coming to a decision which may be in conflict with the decision between the appellant and the deceased -respondent, and therefore it would lead to the Court s passing a decree which will be contradictory to the decree which had become final with respect to the same subject -matter between the appellant and the deceased respondent and hence the decree against the surviving respondent will become ineffective, due to the legal representatives not being brought on record within the period of limitation in respect of one of the dead parties. In Muthuswamy v/s. Venugopalan : AIR 1973 Mad 339 the propositions laid down in the decisions above referred to had been followed. Hence, if it be shown that the decree which is now sought to be proceeded against the plaintiff is a joint and indivisible one then, the appellant will be entitled to the relief he has asked for. O.S. No. 95 of 1965 was filed by the appellant herein for recovery of a sum of Rs. 14,580 from the first defendant personally and from and out of the suit properties in the hands of defendants 2 to 18 with a charge on the said properties and for costs. The suit was decreed for a sum of Rs. 13,119.19 with interest and proportionate costs payable by defendants 2 and 5 to 18 from and out of the suit properties in their hands and the first defendant was made personally liable to a sum of Rs. 125. Counsel for the appellant refers to the finding given in that judgment to show that but for the liability of the defendant there can be no question of passing any decree as against other defendants who are all alienees and charge being created in respect of the properties conveyed in their favour.

(2.) The trial Court has passed a decree so far as the first defendant is concerned under issue No. 11 to the extent of only Rs. 125 on the ground that only to that extent he has been benefited. But in respect of the other amounts, it had not passed any decree, as against the first defendant. Even though the counsel for the appellant refers to the other findings in this judgment on issue Nos. 5 and 8, in the context of this Court in A.S. No. 443 of 1967, setting aside the judgment of the trial Court, it cannot be of much assistance to the counsel for the appellant to rely on those findings and try to show that the decree that was passed by the trial Court was in effect only against the first defendant and not against others and it was a joint and indivisible decree. The reference made by the counsel to the memo, of grounds filed in that appeal in the High Court wherein in ground No. 38, it has been stated that the Court below was wrong in passing a joint decree for the entire amount due to the plaintiff from the first defendant and that the first defendant was also one of the parties in that appeal, and therefore it is clear that the suit claim was a joint and indivisible one whatever be the manner in which the decree had been drafted, cannot be of any assistance to the appellant. Counsel for the respondent contends that to find out whether a particular decree is joint and indivisible one has to look into the nature of the claim, the prayer in the plaint, the actual manner in which the decree had been passed and any reference to be made to the judgment can be only for understanding the decree and when the decree provides for a specific liability, there can be no question of trying to find out the nature of rights claimed in the suit by referring to the judgment for coming to a different conclusion. Regarding the ground No. 33 in the memo, of grounds filed in A.S. No. 443 of 1967 he contends that it cannot have any binding effect in the fact of what is clearly provided in the decree itself. Lastly he contends that the High Court decree had provided for different amounts to be collected by the respective defendants and even the trial Court had passed a decree only for a sum of Rs. 125 as against the first defendant and therefore there is no question of a joint and several decree being passed in this matter and the contention that the decree of the High Court is a nullity cannot be accepted.

(3.) I have already referred to the fact that the judgment of the trial Court had been set aside and the High Court has passed a decree stating as follows: