CHATURBHUJLAL KANHAYALAL Vs. GIRDHARILAL KANHAYALAL

JUDGEMENT

(1.) THE parties to this revision are brothers. They constituted a joint Hindu family until a few years before the death of their father in 1016. Even though a bulk of the joint family property was then divided between them, the money-lending business and some other immovable property mostly forming the assets of that business was left undivided. This property was however partitioned between the brothers as per partition deed dated 15-6-1937 (Ex. P-8.) At this partition the non-applicant, Girdharilal, was allotted to his share the entire money-lending business and some immovable property, total value of the property so allotted was/ estimated at Rs. 23,383-4.0. As incidental to the money-lending business a decree was passed/against all the brothers in Civil Suit No. 94 of 1931 and the liability to satisfy this decree was undertaken exclusively by the non-applicant. [2] The decree-holder in the decree passed in civil suit No. 94 of 1931 had sued out execution against all the brothers on 4-3-1936 and had attached property, which at the partition of 1987 was allotted to the shares of the applicants. The non-applicant had undertaken to get this property released from attachment by satisfying the decree. He did not however satisfy the decree and the property of the applicants is still under attachment. The non-applicant Girdharilal, applied to the Belief Court for scaling down the decretal debts and for framing a scheme making it payable by instalments. In this case (Revenue case No. 129 of 1941) a scheme was actually framed and the decretal amount which was scaled down to Rs. 2059-10-0 was made payable by annual instalments of Rs. 69-0-0. As the applicants (the co-judgment-debtors) were still liable under the decree and their property was under attachment, they too applied for the scaling down of the decretal debt and for framing a scheme. In Revenue case No. 153 of 1942 the Relief Court framed the scheme and the decretal debt as scaled down was made payable by annual instalment of Rs. 220-4-0. Under the scheme, the applicants were required to pay Rs. 220-4-0 as first instalment and they therefore sued the non-applicant for recovery of that amount. 3. The learned Judge of the lower Court dismissed the suit mainly on the ground that the applicants were exonerated from their liability under the decree, and that no coercive processes were taken out by the decree-holder against them and therefore their actions in applying to the Debt Relief Court and in paying the instalment were voluntary. It is on this ground that the learned Judge of the lower Court held that the applicants had no right to claim re-imbursement from the non-applicant. It was further held that as the liability of the non-applicant under the scheme framed in his case was only to pay Rs. 59-0-0 p. a. the applicants were at the most liable to pay Rs. 59-0-0 and not more. In my view the learned Judge entirely failed to comprehend correct legal position and his judgment is therefore not according to law. 4. The Judge of the lower Court started with a fundamental misconception that the applicants were completely exonerated from liability. All the three judgments-debtors were jointly and severally liable to the decree-holder for the entire decretal amount and that liability stood unaffected by any agreement between the judgment-debtors inter se. The scheme framed on the application of the non-applicant did not moreover affect the liability of the other judgment-debtors and the decree-holder's right to proceed against any one of them and to realize the entire decretal amount. 5. Under the Relief Act the debtor means only the applicant and not his co-debtors. The applicants had thus a decree outstanding against them and a perpetual danger of the decree-holder proceeding to sell their property which was already under attachment. They were therefore the persons interested in seeing that the decretal debt was satisfied and their property was released from attachment. They were equally interested in protecting them, selves against the execution of the decree against them by applying to the Relief Court so that in the event of the decree-holder proceeding against them they as agriculturists, should have the advantage of the scaling down of debts and of the payment of decretal debt by instalments. 6. In the present case the applicants were obliged to take recourse to the Relief Court as a result of failure on the non-applicant's part to satisfy the decree and to have the attached property released. But I do not see how any point can be gained against the applicants even if the application was purely voluntary. Every man has a right to act in his own interest and the applicants were within their rights to do so. It is difficult to understand the learned Judge's view that the applicants should have waited till coercive processes were actually issued against them. 7. It is difficult to imagine a stronger case for re-imbursement than of the plaintiffs-applicants who as judgment-debtors under an enforceable decree were not only interested but were also legally liable and compellable to pay. The claim for re-imbursement would certainly fall within the scope of Section 69 when by an agreement inter se one of the judgment-debtors was liable exclusively to satisfy the decree. In Sarafat Ali v. Issar Ali A.I.R. 1918 Cal. 446 it is held that such a claim would fall both under Sections 69 and 70, Contract Act. 8. A person bound by law to pay is always, a person interested in payment though the converse may not necessarily be true. So a person who under a decree is compelled to pay money which bid co-judgment-debtor is ultimately liable to pay can surely recover the amount paid by him: vide Vishram v. Pannalal A.I.R. 1937 Nag. 152. 9. It was held in Mt. Mulabai v. Balakdas Bhagwat Prashad A.I.R. 1938 Nag. 459 that a person can invoke Section 69, Contract Act, if he was interested in making the payment notwithstanding that he was also legally liable to pay. 10. In Bhagirathibai v. Digambar A.I.R. 1945 Nag. 179 Puranik, J. held, and I respectfully agree with him, that a person who wants to invoke Section 69, Contract Act, need not necessarily be a person who is interested according to a judicial test; it is sufficient if the payment is made under an honest belief that his interest requires that the payment should be made. 11. In Troyluckho Nath Roy v. Kashee Nath Roy (70) 14 W.R. 458 even a debtor who satisfied a common liability was held entitled to sue his co-debtor for re-imbursement even though no suit for the realization of the debt was filed by the creditor. It is needless to discuss the law any further, as in my view, it is beyond doubt that the applicants had a right to sue the non-applicant for recovery of Rs. 220-4-0 which they paid towards a decree which the non-applicant had undertaken to satisfy. 12. There is equally no force in the observations of the lower Court that the liability of the non-applicant was limited only to Rs. 59-0-0 per annum. The non-applicant was liable to pay the decretal amount. The concessions which are given to him under the scheme are only as against the creditor (decree-holder) but they are of no avail as against the applicants who are not parties to the scheme though they were unnecessarily shown as parties in the relief proceedings. 13. The decision of the lower Court is clearly wrong and is opposed to law. The applicants' claim should have been decreed. 14. The earned Counsel for the applicants urged that in the event of the claim being decreed against the non-applicant the amount should be made payable by, annual instalments of Rs. 59-0-0 or by easy instalments. There are no bona fides in the non-applicant's favour. He undertook to satisfy this decree in 1937 and that too on consideration received. The applicants made a payment of Rs. 220-4-0 on 14-4-1942, i.e. nearly 5 years ago. The non-applicant has not paid a pie to the applicants and has on the other hand involved the applicants in a costly litigation. He had already had sufficient time to discharge his liability and is not entitled to any more concessions. 15. In the result, the revision is allowed and the claim of the plaintiffs-applicants is decreed with costs in both the Courts. Counsel's fee in this Court Rs. 30-0-0.