MARUTHI Vs. SAHEB RAO

JUDGEMENT

(1.) THIS is a second appeal against the judgment of the first appellate Court holding that the discharge by one of the joint decree -holders, viz., Lakshmibai, does not discharge the decree fully as against the other joint decree -holder, Sahib Rao, and that any statement of Lakshmibai or finding of the lower Court with respect to Lakshmibai having received the decretal property will be deemed only to affect her share in it and will not bind the right of the other decree -holder Sahib Rao to enforce in execution the decree. The facts as appear from the records are that Lakshmibai had claimed as maintenance for certain produce annually against her husband's brother, Sahib Rao. In order to settle this dispute both parties chose three Patel Patwaris of the village, viz., Narayan, Jujja and Maruthi, with whom Sahib Rao deposited the produce of his land claimed by Laxmibai pending settlement of the dispute between them. After the produce was deposited, it is alleged there was a settlement between Sahib Rao and Lakshmibai. Thereafter both Sahib Rao and Lakshmibai jointly filed a suit against these three Patel Patwaris for the recovery of the produce deposited with them which was decreed ex parte in their favour. Saheb Rao filed an execution petition and the judgment -debtors contended that they had handed over the grain to Lakshmibai one of the decree -holders in accordance with the compromise. Lakshmibai also filed an application on 13th Azur 1359 -F. to the same effect. The question whether the grain was handed over was gone into by the execution Court which after taking evidence held that the grain was handed over to Lakshmibai. The other decree -holder denied having received the produce. The original Court after giving a finding that Lakshmibai had received the grain, held that if one of the joint decree -holders receives the decretal property, the decree against both of them is deemed to have been satisfied. The first appellate Court has, as already observed, held that this was not so, and basing its reasons on 'AIR 1935 Nag. 25 in the case of Ramakrishna v. Shanker, had come to the conclusion that the decree in so far as Lakshmibai was concerned was satisfied, but to the extent of the half share of Sahib Rao there has been no satisfaction and the decree can be executed.

(2.) LEARNED Advocate for the Appellant argues on the authority of Shiddeshwar Rao v. Sham Rao 28 Deccan LR 995 and -'Annapurnamma v. Akkayya 36 Mad 544 that where there is a joint decree and it is shown that the decree was for the benefit of one of them, who has received the decretal amount or property, the decree should be deemed to have been discharged as against both the decree -holders. Where there is a decree passed in favour of several persons jointly any one or more of such persons may unless the decree imposes any condition to the contrary, apply for execution of the whole decree for the benefit of them all under Section 272 of the Hyderabad Civil Procedure Code corresponding to Order 21, Rule 15 and if the Court under Sub -Section (2) thereof sees sufficient cause for the decree to be executed on the sole application of one of the joint decree -holders it shall make such order. as it deems necessary for protecting the interests of the persons who have not joined in the application. It is therefore clear that this principle will also be binding in cases where there has been a payment out of Court and where the Court is asked to certify such payments under Section 249 of the Hyderabad Civil Procedure Code corresponding to Order 21, Rule 2 of the Code.

(3.) IN Ramakrishna v. Shanker <MID></MID> : AIR 1935 Nag 25 cited above, Grille C.J. observed that if the rule of law as stated in - Jhakhri Gope v. Fhagu Mahto <MID></MID> : AIR 1927 Pat 329, it to be interpreted as being of universal application and not applicable only to the facts of the case as enunciated, I must respectfully record my disagreement since the dictum appears to ignore the provision in Order 21, Rule 15, Civil Procedure Code, particularly enacted for the benefit of joint decree holders who have taken no part in an application for execution. In the case of Muthuswamy Iyer v. Narasimha Iyer 57 Mad 696, Sundaramchetty and Pakenham Walsh JJ. after discussing with approval the case Laxmandas Chaturbhujdas 28 All 252; Lakshmanan Chetty v. Subbiahchetty 47 Mad 920, Md. Silar Sahib & co. v. Nabi Khan Sahib 31 Mad. LJ 93 and Pitchakkuttiya Filial v. Doraiswami Mooppannar 47 Mad LJ 498, held that a decree standing in the name of a firm must nevertheless be treated as a decree in favour of all the partners jointly even for the purposes of Order 21, Rule 15 of the Code of Civil Procedure. One of several joint decree -holders though they are partners cannot, by reason of the provisions of Rules 1 and 15 of Order 21 of the Code, give a valid discharge by receiving the decree amount out of Court without the concurrence of the other -holders. A later case of the Nagpur High Court in Fatima Bi v. Mt. Tuka Bai AIR 1945 Nag 95 also laid down that a payment made to one decree -holder is not binding on the other decree -holders. It was observed by Grille, C.J. and Sen J. at page 97 that "after a decree has been passed in favour of certain persons they have certain rights. They cannot be defeated by the conduct of other decree -holders". The case of Annapurnamma v. Akkayya 36 Mad 544 referred to by the Appellant's Advocate is not applicable to the facts of this case, because that was a case under Negotiable Instruments Act where one of the joint payees of Negotiable Instruments gave valid discharge of the entire debt without the concurrence of the other payees and this was held by the Pull Bench (C.J. dissenting) that it validly discharged the debt. The decision of the case was based entirely under the provisions of the Negotiable Instruments Act and the Contract Act, and in my view inapplicable to the point under consideration.