RAVI JAGANNADHAM Vs. SURJI SAHUANI AND ORS.

JUDGEMENT

(1.) THIS is a judgment -debtor's appeal from an order of the Additional District Judge, Ganjam -Nayagarh, Berhampur, confirming an order of the Munsif, Berhampur, in an application on behalf of the decree -holders in Execution Proceedings No. 107 of 1953 to realise the decretal amount by arrest under order 21, Rule 37 Code of Civil Procedure.

(2.) THE matter arose in these circumstances the mortgage which was the subject -matter of these proceedings there were several mortgagors who had mortgaged certain lands with an area of 20 acres of land (roughly stated) in favour of the sole mortgagee who was the Defendant No. 1 in the suit hereinafter mentioned. It appears that subsequently the equity of redemption of some of the mortgagors was sold away to the Plaintiff's Nos. 1 and 2' in the suit, in 1946, a suit for redemption of the mortgage was filed, the Plaintiffs in that suit were the Plaintiffs Nos. 1 and 2 being the purchasers of the equity of redemption of some of the mortgagors. The Plaintiffs Nos. 3 to 8 were the remaining mortgagors. The Defendant were five the Defendant No. 1 being the sole mortgagee and the Defendants Nos. 2 to 5 were the remaining mortgagors who were proforma Defendants by reason of their not having joined in the suit for redemption. On May, 4, 1950 a final decree was passed for redemption, By that decree, the Plaintiffs Nos. 1 and 2; being the purchasers of the equity of redemption of some of the mortgagors as aforesaid, were to recover possession of the suit mortgaged land either from the 1st Defendant -mortgagee or from the Receiver who was appointed in that suit, It was further ordered by the said decree that the 1st Defendant -mortgagee was to pay the Plaintiffs Nos. 1 to 8 and the Defendants Nos. 2 to 5 (all being mortgagors In respect of the said mortgage) the sum of Rs. 14,278 -15 -4 on account of mesne profits recovered from the land. In 1950, the Defendants Nos. 2 to 5 (being some of the mortgagors as aforesaid) received a sum of Rs. 4000/ - from the mortgagee -Defendant No. 1 and gave a valid discharge after receiving payment from the sole mortgagee -Defendant No. I. Then by an order dated April 9,1952 being Order no, 136 in M.J.C. No. 178 of 1950 made by the learned Munsif, Berhampur, payment of the said sum of Rs. 4,000/ - was certified as having been in full satisfaction of the entire decree under Order 21, Rule 2 of the Code of Civil Procedure. The relevant portion of the said order, so far as relevant for the present purpose is set out as follows:

(3.) MR . R.S. Sahu, learned Counsel appearing for the Respondents in this matter, cited before me a decision of the Bombay High Court n support of his contention that even if there was a risk of double payment in a case like this, the decree -holder was entitled to (sic) the entire decree. The case cited was Valchand Gulabchand Shah v. Manekbai Hirachand Shah : A.I.R. 1953 Bom 137. The facts in that case were that one H and his son M by his pre -deceased first wife filed a suit against his two brothers S and W for an account of certain property which they alleged had been entrusted to the two Defendants for management. During the pendency of the suit, H, the Plaintiff No. 1 died and his widow M -2 and minor son C were brought on record as his heirs and legal representatives and they were impleaded as Plaintiffs 1A and 1B to the suit. During the course of the suit there was an arbitration. The arbitrator made an award and a decree in terms of the award was passed. Under the decree the Defendants were asked to deliver to the Plaintiffs possession of shares worth about Rs. 13,842/ -, certain ornaments mentioned in the schedules Band C worth Rs. 13,574/ - and Rs. 18,550/ - respectively and other things mentioned in the decree. In the alternative, they were awarded a sum of Rs. 27,044/ -. Furthermore, the Defendants were asked to render accounts of the money -lending business and to pay a sum of Rs. 10,000/ -. The Defendants having failed to satisfy the decree, the widow M -2 filed an execution case in the court of the Civil Judge to execute the decree on behalf of herself and her minor son C. A.s the decree was a joint decree, the execution application came to be filed under the provisions of Order 21, Rule 15 which enables one or more of the decree -holders to apply for execution of the whole decree for the benefit of all decree -holders. After an order of attachment was made by the executing court, W one of the Defendant judgment -debtors appeared before the court and contended, inter alia, that the application was not maintainable. W's defences to the execution application were that it was not maintainable as M had not joined; that ornaments mentioned in schedule B & C had already been handed over to M -? and M; that Rs. 10,000/ - had been paid to M at the time of his marriage; and lastly, that the petitioning decree -holders had agreed to take one piece of land belonging to the Defendants in satisfaction of the decree to the extent of Rs. 25,000/ -. Both the executing court and Shah, J. held that application was maintainable and that the agreement to take one land in satisfaction of the decree had not been proved. This is a staring feature which distinguishes the Bombay case from the present case where there is no dispute as to the fact of payment of Rs. 4,000/ - in satisfaction of the decree in so far as the interests of the decree -holders other than the Plaintiff No. 2 was concerned and such satisfaction was certified under Order 21, Rule 2 Code of Civil Procedure. It was in the above -mentioned circumstances that the Bombay High Court allowed execution to proceed even at the risk of double payment. In the present case, the real point is that, having regard to the nature of the decree, to payment to some of several joint decree -holders amounted to discharge of those decree -holders share in the decree, with the effect that the remaining decree -holder can proceed to execute the decree only in respect of his own share therein. The Bombay High Court, in the case cited above, decided that payment to one of the several joint decree -holders cannot be recognized as a payment to all (unless he is authorised to receive such payment on behalf of all and does not amount to a 'protanto' satisfaction even to the extent of what is regarded to be the share in the decree of the decree -holder who receives payment. The staring fact in the Bombay case, which clearly distinguishes the present case, was that there was to payment in full satisfaction of the decree which was certified under Order 21, Rule 2 Code of Civil Procedure as in the present case. If the law was otherwise then the provisions of Order 21, Rule 2 Code of Civil Procedure would have no effect whatsoever. It is with a view to give valid discharge to the judgment -debtors that the provisions for certification of payment have been made with a view to protect them. In this view of the matter, I do not think that I can maintain the order of the lower appellate court or of the learned Munsif.