JAMUNA PROSAD SINGH Vs. (BAHURIA) RAM SAKHI KUER

JUDGEMENT

(1.) This is an appeal by a judgment-debtor who made an application under Section 47, Civil P.C., in an execution case. Amrit Narain Singh sued a number of defendants for the recovery of certain shares in two mauzas and obtained a decree from the trial court. On appeal the High Court dismissed the suit. There was a further appeal to the Privy Council which restored the decree of the trial court. The decree-holder at first applied in execution for delivery of possession, when he was opposed by some judgment-debtors on the ground that as six of the original defendants had died during the pendency of the appeal to the Privy Council and had not been replaced on the record by their legal representatives, the decree of the Privy Council was a nullity in its entirety. The executing court overruled this contention, and on appeal the High Court held that the decree was a good decree against those who were "living parties" to it. Then came the present execution case, in which the applicants were Mt. Ram Sakhi Kuer, who claimed to be the daughter and sole heir of Amrit Narain Singh, and Maheswari Prasad Singh, an assignee in part from her.

(2.) In his application under Section 47 the appellant raised various objections which it is now unnecessary to set out. The present appeal is only concerned with the question whether the appellant, as one of the judgment-debtors from among the "living parties" to the Privy Council decree, is liable for any part of the costs awarded by the decree of the Privy Council, and if so, whether he is liable in excess of the proportion of the suit property in his possession. The decree for costs did not indicate the proportions in which the costs were to be borne by the respondents and the accepted rule is that such a decree imposes a joint and several liability on all the respondents, Midnapur Co. Ltd. V/s. Madan Marwati AIR 1923 Pat 215.

(3.) The learned advocate has urged that as six of the original defendants were not living parties to the Privy Council decree, it must be taken that Amrit Narain Singh had released them. He has further urged, somewhat half heartedly, that as a result of release of those six defendants, all the other respondents also are released from all liability under the decree. The contention however rests on an old English common law doctrine which does not find much favour in modern times even in England and which has been repeatedly held not to apply to this country: see Ram Ratan V/s. Aswini Kumar. [1910] 37 Cal 559, Bhawani Koer V/s. Darsan Singh [1911] 11 IC 450 and Moolchand V/s. Alwar Chetty [1915] 39 Mad 518.