CHIMNA Vs. CHUNILAL

JUDGEMENT

(1.) THIS is an execution second appeal by the judgment-debtor Chimna arising out of a suit for money. The respondents Chunnilal and Bakhtawarmal along with five others who have not been made parties to this appeal instituted a suit against the appellant for a sum of Rs. 3073/7/ -. The parties obtained a decree on the footing of a compromise from the court of the learned Judicial Superintendent, Sojat, by which it was provided that the present appellant would pay a sum of Rs. 700/- on Falgun Sudi 11, Svt. 2004 and a further instalment of Rs. 1000/- only on Baisakh Sudi 15 of the same Samwat year but that in case he defaulted to make the aforesaid payments on the due dates, the plaintiffs would be entitled to recover the entire suit amount, that is, Rs. 3073/7/ -. The parties were directed to bear their own costs in the suit. It is admitted that the present appellant paid the first instalment of Rs. 700/- a little after Falgun Sudi 11, Svt. 2004 which was, however, accepted by the respondents. As regards the second instalment, the appellant's case is that he offered the amount to the decree-holders on the due date but they refused to accept the money. It is further alleged that as the courts had closed for the summer vacations immediately thereafter, the appellant deposited the entire sum of Rs. 100/- in the executing court on the 1st July, 1948, when that court reopened after the long vacation saying in his application that the decree-holders had refused to accept the money on its having been offered to them. On 1st July, 1948, respondent Bakhtawarmal who was one of the decree-holders, filed an execution application for the recovery of the whole of the decretal amount except the sum of Rs. 700/- already received, and obtained a warrant of attachment against the judgment-debtor's property. The latter raised an objection that he had satisfied the entire decree and was not liable to pay anything more towards its satisfaction. The executing court dismissed the objection. The finding of that court was that the judgment-debtor had failed to pay the instalments on the due dates and that his version that he had offered to pay the sum of Rs. 1000/- to the decree-holders on the due date was false and that the deposit of Rs. 1000/- made by him on the 1st July, 1948, was not a sufficient compliance with the terms of the decree. The judgment debtor took an appeal from the above decree to the learned District Judge, Pali, who affirming the findings of the court below, dismissed the appeal. THIS second appeal has been filed from the above judgment and decree.

(2.) A preliminary objection was raised by learned counsel for the respondents that this appeal was defective for want of necessary parties thereto and must be dismissed. The argument of learned counsel was as follows. The decree had been obtained against the present appellant by seven persons in all. Of these, Chunnilal and Bakhtawarmal only have been impleaded as parties to this appeal. The other decree holders were Hastimal and Babulal who have been described as minor sons of Chunnilal and they had brought the suit through their father Chunnilal who acted as their next friend. Jeevraj and Prithviraj were also decree-holders and they were sons of Juharmal. It appears that they were also minors and sued through their next friend Chunnilal. The seventh decree-holder was Bastimal, also minor son of Juharmal, and he sued through his father Juharmal who was his next friend. The name? of all these persons appear in the decree of the trial court dated 18th March, 1949, as plaintiffs. The contention of learned counsel is that all these persons are necessary parties to the present appeal as they had obtained a joint decree against the present appellant. He cited Chandra Kumar vs. Elahi Buksha (1) (A. I. R. 1926 Cal. 667.) in his support where it was held that where the result of not joining some defendants in an appeal would be that if the appeal is decreed there will be two inconsistent decrees, the nonjoinder is fatal to the appeal and it must be dismissed. It must be pointed out, however, that the application for execution moved on the 1st of July, 1948, was signed by Bakhtawarmal only and he put his signatures as Bakhtawarmal Chunnilal. Now, in the case of a joint decree, O. XXI R. 15 C. P. C. permits one of the decree-holders to apply for execution for the benefit of himself and the other decree-holders. There is in fact a presumption, that when one of the decree holders applies for such execution, he does so for the benefit of the whole lot of the decree-holders and it is not for the judgment-debtor to object to such a course being adopted. If the executing court finds it necessary it can always take the necessary steps to safeguard the interests of the decree-holders who have not applied. See Madho Parshad vs. Ghanaya Lal (2) (A. I. R 1930 Lah. 603. ). Although, therefore, it was open to one of the decree-holders to apply for execution in the present case, it cannot be said that the other decree-holders, who had not applied, were not parties to the execution. Bakhtawarmal had stated, the names of the decree-holders in his application for execution of the decree. When the executing court dismissed the judgment-debtor's objection, I am of opinion that he should have impleaded the rest of the decree-holders as parties to his appeal whether in this Court or in the first appellate court. It was contended by learned counsel for the appellant that as only Bakhtawarmal & Chunnilal had applied to execute the decree and as he thought that these were two decree-holders, he had impleaded only these decree-holders as parties to his appeal. This contention, in my opinion, has no force. The test in such a case is not as to who is the applicant for the execution of the decree for Order XXI R. 15 permits any one or more of joint decree-holders to apply for execution of the whole decree; but the real test is who are the persons interested in the execution of the decree and all such persons are, in my view necessary parties to an appeal from the decision of the executing court. Reference may be made in this connection to Mohini Mohun Das vs. Bungsi Buddan Das (1) (I. L. R. XVII Cal. 580.) which is a case which went up to their Lordships of the Privy Council. There three suits were brought by one of three joint-creditors, the others being named as co-plaintiffs with him in the plaints, which he alone signed and verified. It was contended that as the plaint had been signed and verified by one of the creditors only, he alone must be treated as plaintiff. This contention was repelled and it was held by their Lordships that there was no rule that a person named as a co-plaintiff was not to be treated as a plaintiff unless he signed and verified the plaint. It was further held by their Lordships that the two plaintiffs Who had not signed became parties to the suit on the very day it was instituted, and, therefore, the suits were not barred by time and that any further proceedings taken to add one of them as co-plaintiff were wholly inoperative and the suits when instituted were not defective for want of parties. Applying the principle of the case above referred to, I have no hesitation in holding that all the decree-holders were parties to the execution, and are further necessary parties in any appeal from the decision of the executing court.