RADHAKISHANDAS AND ANOTHER Vs. DWARKADAS AND OTHERS

JUDGEMENT

(1.) THIS appeal raises an interesting question as to what is to happen when a final decree for sale of a mortgaged property has been passed against two persons, one of whom obtains a reduction of the debt by the Debt Relief Court, while the other is not entitled to apply to that Court. In the present case a field was mortgaged by Dalpat and Bhikari who were members of a joint family, but subsequently the field was divided into two equal shares and Dalpat's half share was sold in 1927 to the father of the appellant. A final decree for sale for Rs. 2157-13-6 was passed on 18th April 1986. Bhikari's heirs applied to the Debt Relief Court and the whole amount was scaled down by the Debt Relief Court to Rs. 927-8-0 and instalments were granted. The mortgagee is now seeking to execute the mortgage decree for sale against the appellant and to sell the half share of the mortgaged property purchased by the appellant's father in execution of the final decree for Rs. 2157-13-6.

(2.) THE appellant contends that the jurisdiction of the Court to execute the decree is barred by Section 28, Debt Relief Act. He also contends that in no case should the decree be executed for more than half the decretal amount, and that if he has to satisfy the whole decree he will be adversely affected as regards his right of contribution from the other judgment-debtors. He also contends that as he was himself before the Debt Relief Court in the capacity of a subsequent mortgagee of the share of the other judgment-debtors, the decision scaling down their debt to the respondent and granting instalments must be a decision binding on the respondent as regards his own liabilities. We have no hesitation in negativing the latter contention.

(3.) THE Debt Relief Act contains no provision to govern the difficult situations which occur as a result of one of two joint debtors applying to the Debt Relief Court, and we consider that it is impossible in all cases to apply Section 60, T.P. Act, strictly without regard to the curious results arising from this unsatisfactory legislation. It is quite clear that as a result of the proceedings in the Debt Relief Court the debt of Bhikari's representatives has been finally scaled down. If the appellant has to pay the full amount of the mortgage money his claims for contribution will be affected by the relief given to Bhikari's heirs. If he pays up the whole of the decretal amount then he will only be able to recover by way of contribution half the amount to which the debt has been scaled down as re-, gards Bhikari's heirs, that is to say, Rupees 468-12-0. We consider that although the appellant was not entitled to obtain relief from the Debt Relief Court, nevertheless loss occasioned by scaling down the debt as regards Bhikari's heirs must fall on the creditor and not on the co-mortgagor, and that therefore the decree should in no case be enforceable against the appellant for more than half the amount of the decree together with such sum as he would be entitled to recover by way of contribution. But here comes another difficulty. If the settlement is to be effective as regards Bhikari's heirs, such sum could not be recovered until instalments had fallen due. Who is to suffer the delay? Obviously, we think, it should be the creditor. The result attained on this line of reasoning would be that execution should proceed for half the decretal amount only, leaving the creditor with his rights under the settlement to enforce.