(1.) These are two second appeals against the decision of the learned Assistant Judge, Dharwar, dismissing the appeals and confirming the decrees passed by the learned Civil Judge (J. D.) at Gadag.
(2.) One Mudlingangouda was indebted to various parties. Plaintiffs 1 to 4 and defendant 11 filed suits against him and obtained money decrees against him during his life-time. Defendants 1 to 5 also filed suits against him during his life-time but during the pendency of these suits he died. His legal representatives were brought on record of these suits and decrees were ultimately passed in favour of defendants 1 to 5 against defendants 12 to 15 who were the legal representatives of the deceased Mudlingangouda limited to the extent of the assets of Mudlingangouda come to their hands. Defendants 6 and 7 filed their suits after the death of Mudlingangouda against the legal representatives of Mudlingangouda and they also obtained money decrees against the legal representatives of Mudlingangouda limited of course to the extent of the assets of Mudlingangouda come to their hands. There were thus decrees passed against Mudlingangouda during his life-time in favour of plaintiffs l to 4 and defendant 11. There were decrees passed against his legal representatives in suits which were instituted against him during his life-time but in which the legal representatives were brought on the record on his death pending the disposal of those suits ;n favour of defendants 1 to 5, and there were decrees passed against the legal representatives of the deceased Mudlingangouda in suits which were instituted after his death only against his legal representatives in favour of defendants 6 and 7. Thirteen darkhasts were filed against the legal representatives of the deceased Mudlingangouda and in the darkhast which was filed at the instance of plaintiffs 1 to 4, assets to the extent of Rs. 6,425 were realised and were in the custody of the executing Court. Defendants 1 to 5 and defendants 6 and 7 applied for rateable distribution of these assets under Section 73, Civil Procedure Code on October 13, 1937. The executing Court passed an order for rateable distribution in favour of all these applicants. In accordance with the terms of this order payments were made to the respective parties on October 18 and 19, 1937. On October 18, 1940, the plaintiffs filed the suit out of which these appeals have arisen making defendant 11 also a party-defendant to the suit claiming a refund of the amounts which had been obtained on rateable distribution by defendants 1 to 5 and 6 and 7, contending that the decrees which were passed in their favour were against Mudlingangouda himself but the decrees which were passed in favour of defendants 1 to 5 and 6 and 7 were passed against the legal representatives of the deceased Mudlingangouda, with the result that these decrees could not be said to have been "passed against the same judgment-debtor" within the meaning of the expression as used in Section 73, Civil P.C. It may be noted that defendant 2 had transferred his decree in favour of defendant 9, defendant 10 was the owner of defendant 5's shop and defendant 8 had been transposed as plaintiff 4. Defendants 12 to 15 were made party-defendants to the suit in their capacity as the legal representatives of the deceased Mudlingangouda and they were impleaded as party defendants in so far as they might be affected by the order ultimately passed by the Court in the suit.
(3.) On July 6, 1943, the trial Court at Gadag passed a decree in favour of the plaintiffs holding that the decrees against Mudlingangouda and the decrees passed against the legal representatives of Mudlingangouda could not be said to have been passed against the same judgment-debtor. This decision was taken to appeal and the learned Assistant Judge at Dharwar, who heard the appeal, following the decisions of this Court in --'Govind v. Mohoniraj', 3 Bom L R 407 and -- 'Chunilal v. Broach Urban Co.-op. Bank. Ltd.', 39 Bom L R 815 dismissed the appeal and confirmed the decree passed by the trial Court. In the judgment which he delivered, the learned Assistant Judge adverted to & decision of the full bench in -- 'Mulchand Kesaji v. Shiddappa', 48 Bom L R 571 (FB) which was also a decision on the construction of Section 73, Civil P. C., but which referred not to the question which arose directly for decision by him but to the question whether the decree which was passed against A, B and C and the decree which was passed against A alone could be said to be decrees passed against the same judgment-debtor. The full bench there, in --'Mulchand Kesaji v. Shiddappa', put a liberal construction on the words "the same judgment-debtor" used in Section 73, Civil P. C. and put great stress on the identity of property against which execution was sought rather than the identity of persons against whom decrees were passed 'eo nomine'. The learned Assistant Judge appeared to have thought that though such liberal construction should as well have been put in the matter of the decrees which came for scrutiny before him, he was concluded by the two decisions of our High Court reported in the case of -' Govind v. Mohoniraj', and in the case of ---'Chunilal v. Broach Urban Co-op. Bank Ltd.', above referred to. He, therefore, dismissed the appeal and confirmed the order passed by the trial Court. These second appeals have been filed by defendants 1, 3, 4 and 9 and by defendant 6 against that decision of the learned Assistant Judge and have come on for hearing and final disposal before us.