GOSWAMI MURARI LAL Vs. MTBIBI

JUDGEMENT

(1.) This is a revision application by decree-holders arising out of a case in execution proceedings. The facts of the case can very briefly be stated as follows: Murari Lal and Ram Prasad obtained a decree against Akbar Husain and others. I am informed that Akbar Husain and others were cosharers in a certain village and that they have jointly sold their share and that under the terms of the sale deed it has been agreed that if the purchasers lost possession over the property the vendors would be liable in damages under the usual indemnity clause. The property or a portion thereof was lost and therefore Murari Lal and Ram Prasad instituted a suit and obtained a decree for damages against all the respondents. Now, it so happened that Akbar Husain, one of the judgment-debtors, made an application under Section 4, Encumbered Estates Act. He showed in his application the debt which was due to the two decree-holders. Somehow or other the other respondents were not made parties to the Encumbered Estates Act proceedings. Section 9, Sub-section (5), ordains that if one or more of several joint debtors who are not members of the same joint Hindu family apply under Section 4 but all the joint debtors do not apply then the Special Judge shall determine the amount of the joint debt which is due by the debtor or debtors who have applied and the amount due by those who have not applied. For the purpose of this determination the Special Judge shall make the joint debtors who have not applied parties to the proceedings and shall hear any objection that they may make before recording his finding.

(2.) Clause (b) says: If all the joint debtors have not applied under Section 4 the creditor shall have a right to recover from the debtors who have not applied only such amount on account of the joint debt as may be decreed by the Special Judge to be due by them.

(3.) Admittedly no such question arose in the Encumbered Estates Act proceedings. The decree-holders applied for execution of their decree as against those judgment-debtors who had not applied under Section 4, Encumbered Estates Act. The learned Judge of the Court below has therefore held that it is not open to the decree-holders to execute their decree against those judgment- debtors who had not applied under Section 4, Encumbered Estates Act. That is the only question for the determination in this case.