DHULESAHEB DAWALSAHEB JAMBAJI Vs. MUNICIPAL BOROUGH

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings, and a few facts may be stated in order to appreciate the contentions of the parties before us. It seems that the plaintiff as the decree-holder obtained a decree in Suit No.264 of 1934 against defendant No.1 and the suit against defendants Nos. 2 and 3 was dismissed. The plaintiff-Municipality appealed against the order of dismissal. On August 11, 1936, the learned District Judge allowed the appeal and awarded to the Municipality a decree against all the defendants. There was also a provision in the decree for the costs of the appeal and that provision was that the costs of the appeal were to be paid by defendants Nos. 2 and 3.The costs of the trial Court were made payable by all the defendants. On April 8, 1936, while the appeal before the District Court was pending, darkhast No.298 of 1936 was filed by the Municipality to execute the decree of the trial Court against defendant No.1, and on August 12, 1936, that darkhast was disposed of. From the judgment of the District Court defendants Nos. 2 and 3 preferred an appeal to this Court fend this Court dismissed the appeal with costs. While this appeal was pending before this Court, on July 5, 1938, the Municipality filed darkhast No.474 of 1938 to execute the appellate decree passed in the appeal disposed of by the District Court. That darkhast was filed against defendant No.1 only and in that darkhast the Municipality claimed the whole of the decretal amount, the costs of the trial Court and the costs of the appeal before the District Court. Obviously the Municipality was in the wrong in trying to execute the decree with regard to the costs of the appeal against defendant No.1, and in the darkhast proceedings they withdrew that claim. On December 13, 1941, that darkhast was disposed of by defendant No.1 paying the amount of the decree and also the costs of the trial Court. Then on April 8, 1943, the present darkhast, from which this appeal arises, was filed by the Municipality against defendant No.2 to recover the costs of the two appeals. The executing Court took the view that the darkhast was barred by limitation and dismissed it. The learned District Judge came to the opposite conclusion and reversed the order of the trial Court.

(2.) NOW, what the judgment-creditor is executing is the decree of this Court passed on December 6, 1938, and prima facie as the present darkhast is filed on April 8, 1943, the darkhast is barred by limitation. But the judgment-creditor seeks to avail itself of the darkhast filed on July 5, 1938, viz. darkhast No.474 of 1938, and the short point that we have to consider is whether it is open to the Municipality to avail itself of that darkhast. That darkhast was only against defendant No.1; it was not against defendants Nos. 2 and 3.But the contention of Mr. Hungund for the respondent is that as the decree that was passed was a joint decree against all the defendants, the darkhast filed against defendant No.1 only must take effect also against defendants Nos, 2 and 3, and for this purpose reliance is placed on para. 2 of expln. I to Article 182 of the Indian Limitation Act. This paragraph deals with decrees which are severally passed against judgment-debtors and decrees which are passed jointly against judgment-debtors. With regard to decrees which are passed severally, the explanation provides that execution of such a decree against one of the judgment-debtors cannot take effect against the other judgment-debtors. With regard to joint decrees the provision is that an application for execution against one of the judgment-debtors would take effect against them all. Mr. Hungund's contention is that if there is a decree against more than one judgment-debtor, even though a portion of it may be against some and a portion of it may be against the others, it must be looked upon as a joint decree. It seems to me that this argument on the face of it is untenable and fallacious. There may be a decree containing various provisions; some provisions may be against all the judgment-debtors jointly; others may be provisions severally against some or other of the judgment-debtors. Merely because in a part of it the decree is joint against all the defendants, to say therefore that it is a joint decree is a proposition which, in my opinion, is unstatable and inarguable. According to Mr. Hungund, then, one can never have a decree which is partly joint and partly several. If it is partly joint, then the whole of it is joint and the second part of the explanation would apply to such a decree.

(3.) IN our opinion, therefore, it is not open to the judgment-creditor to avail itself of Darkhast No.474 and that darkhast cannot take effect against defendants Nos. 2 and 3.Therefore the present darkhast filed on April 8, 1943, is clearly barred by limitation. The result, therefore, will be that the appeal will be allowed with costs throughout. Bhagwati, J.