LAXMAN ANANT PAI KAGAL Vs. GOVIND RAMBHAT

JUDGEMENT

(1.) THIS is a revision application under Section 115 of the Civil Procedure Code, which raises a question under Section 73 of the Civil Procedure Code, which is not altogether free from difficulty.

(2.) THE present applicant obtained a decree against a father and son, members of a Hindu joint family. Of the thirteen opponents, one obtained a similar decree against the father and son, and his position is obviously the same as that of the applicant. But the other twelve opponents obtained decrees against the father alone, and I will assume that in all those decrees the father was shown as the manager of the joint Hindu family. In execution of the applicant's decree, ancestral property has been sold for Rs. 5,289, and that money is in Court. THE opponents applied to execute their decrees, and they now ask for rateable distribution with the applicant.

(3.) NOW there has been a difference of opinion between this High Court and the High Court of Madras as to the meaning of the expression "same judgment-debtor" in Section 73 in cases where a decree has been obtained against a man in his lifetime, and then after his death another decree has been obtained against his personal representative. In such a case are both decrees obtained against the same judgment-debtor? This Court held in Govind Abaji Jakhadi v. Mohoniraj Vinayak Jakhadi (1901) I.L.R. 25 Bom. 494, S.c. 3 Bom. L.R. 407. that they were not, that the expression" the same judgment-debtor "must be construed strictly, and that, inasmuch as the decrees were against different persons, they could not be said to be against the same judgment-debtor. The same view was taken recently by this Court in Chunilal v. Broach Urban Co-op, Bank, Ltd (1937) 39 Bom. L.R. 815. On the other hand, the Madras High Court has given a more liberal construction to the expression" the same judgment-debtor", and has held that the deceased debtor and his personal representative must be regarded as the same judgment-debtor, because the decrees are executable against the same estate. The latest decision of the Madras High Court is a full bench decision, Rama Krishnan Chettiar v. Viswanathan Chettiar (1935) I.L.R. 59 Mad. 93. So far as that point is concerned, we are bound by the decisions of this Court, which could only be dissented from by a full bench. But the point which arises in this case, namely, whether a decree against a Hindu father is against the same judgment-debtor as a decree against the father and son, is, to my mind, not by any means the same point, though in some of the Madras cases it has been suggested that it is, at any rate, very similar. Sir Arnold White C.J. in Ramanathan Chettiar v. Subramania Sastrial (1902) I.L.R. 26 Mad. 179, suggested that the same principle governed both classes of case, and held that a decree against a father and a decree against a father and his son were decrees against the same judgment-debtor, the father being the manager of the joint family of which the son was a member. So that, that decision is exactly in point, and it has been followed in later decisions by the Madras High Court, the last decision being Subramaniam v. Annamalai, [1940] A.I.R. Mad. 525. But with all deference to the Madras High Court, I think there are serious difficulties in the way of the construction adopted. In the first place, it is really incorporating into the construction of Section 73 principles peculiar to Hindu law, because it is only where the defendants, father and son, are members of a joint Hindu family, that they can be regarded as the same judgment-debtor. In the case of defendants belonging to other communities, or being members of a divided Hindu family, it could not be suggested that a decree against a father is against the same judgment-debtor as a decree against father and son. Apart from the difficulty of construing an Act of the legislature so as to assign to it different meanings according to the community of the parties, there seems to me to be this practical difficulty, that the construction adopted by the Madras High Court may very well deprive the son of his right to claim that the debt, the subject of the decree against his father, was one incurred by the father for immoral purposes, and is, therefore, not binding upon him. There may be a decree against a father and son for a debt which was incurred for the purposes of the joint family; then there may be a decree against the father alone for a debt not incurred for the purposes of the joint family, but incurred for immoral purposes. If the former decreeholder is proceeding to execute his decree, it seems to me that the creditor of the father alone can obtain rateable distribution, if the debtor is the same, without allowing to the son any opportunity of disputing his liability, because the terms of Section 73 are peremptory and in a case falling within its terms rateable distribution must be allowed. For those reasons, in my opinion, on the true construction of Section 73 it cannot be said that a decree against a father and a decree against a father and son are decrees against the same judgmentdebtor.