JAMIYATRAM GAURISHANKAR JOSHI Vs. UMIYASHANKAR PRANSHANKAR JOSHI

JUDGEMENT

(1.) THIS is a revision application in execution, which raises a question under Section 73 of the Civil Procedure Code, 1908. There were two decrees, the first being against three persons personally and a fourth person whose existence can be ignored, I think, and the second against the same three persons as the heirs of their deceased father. The question which arises is whether a decree against a person individually and a decree against that person as representative of a deceased person can be held to be decrees against the same judgment-debtor within the meaning of Section 73 so as to entitle the holders of the two decrees to rateable distribution.

(2.) MR. C.K. Shah for the applicant relies on a recent decision of the Calcutta High Court in Hemendra Nath Chaudhuri v. East Bengal Commercial Bank (1936) I.L.R. 63 Cal. 923. in which the Court held that in such a case the decrees were against the same judgment-debtor. On the other hand, MR. J.C. Shah relies on decisions of other High Courts in which the opposite view has been taken. The question does not seem to have come before this Court.

(3.) OTHER High Courts have taken the same view of Section 73 as I do. In Rama Krishnan Chettiar v. Viswanathan Chettiar (supra) Mr. Justice Pandrang Row in the course of his judgment says (p. 98):- It has also been held, and here too there is no dispute,, that even though the person against whom the decrees were passed is the same in name, Section 73 will not apply unless that person occupied the same character in all the decrees; for instance, where one decree was passed against A in his personal capacity and another against him as heir of P, the two decrees are not against the same judgment-debtor.