RAM SAGAR SINGH Vs. YOGENDRA NARAIN PD SINGH

JUDGEMENT

(1.) This second appeal is by the defendant arising out of a suit instituted against him for recovery of a sum of Rs. 1,500/- besides interest, having been paid by the plaintiffs in an execution proceeding, in the following circumstances. The defendant and the plaintiffs' father Tula Singh are said to have executed a handnote on 2-3-1952 for a sum of Rs. 1,600/- in favour of one Chakradhar Prasad Singh. According to the plaintiffs' case, the money under the handnote was borrowed by the defendant and their father Tula Singh was merely a surety. The defendant defaulted in paving the dues to the said Chakradhar Pd. Singh, who filed Money Suit No. 46 of 1955 in the Court of the Munsif, Hajipur, against the defendant and the plaintiffs (their father having died in the meantime) jointly and obtained an ex parte decree against them. The decree-holder levied Execution Case No. 393 of 1957 but proceeded against the property of the plaintiffs only, so much so that it was put to auction sale and purchased by the decree-holder. Before, however, the sale was confirmed, the defendant filed a petition on 6-2-1961 (Ext. 1) admitting his liability for the decretal dues and praying for allowing him to pay the same in instalments. The prayer was allowed on that very day and the defendant paid a sum Rs. 1,600/- in three instalments, but stopped payment thereafter. The plaintiffs in order to save their land filed a petition on 18-2-1964 in the executing Court praying that the case either may proceed against the defendant for the recovery of the balance of the decretal dues in view of his admission in the petition dated 6-2-1961 (Ext. 1) admitting his liability for the entire decretal dues, or they may be allowed to deposit the balance. The executing Court directed the plaintiffs to deposit the balance of the decretal amount and, accordingly, they paid Rs. 1,500/- in three instalments. As already said above, the plaintiffs instituted the present suit for recovery of the same.

(2.) The suit was contested by the defendant, inter alia, on the ground that plaintiffs' suit was barred by the principles of res judicata inasmuch as the money suit in question was decreed against the defendant and plaintiffs both and as such the plaintiffs were equally liable to satisfy the decretal dues. It was, therefore, not open to them to take a different position in the executing Court, nor the executing Court was entitled to go behind the decree. The plaintiffs and the defendant both, therefore, having paid the decretal dues almost half and half, the plaintiffs were, not entitled to any relief in this suit.

(3.) Both the Courts below have decreed the suit on a finding that Tula Singh was merely a surety in the hand-note in question and the defendant was alone liable to satisfy the dues thereunder. They have further held that the suit was not barred by the principles of constructive res judicata. The Court of appeal below has also recorded a finding against the defendant regarding his plea that fraud was practised upon him in filing the petition (Ext. 1) on his behalf in the execution case, in which an admission was made by him admitting the entire liability for the decretal dues on the statement that Tula Singh was merely a surety. His further case that he was carrying a joint business with Tula Singh and, therefore, both of them had executed the handnote in question has also not been accepted.