LAL SINGH NAYAL Vs. JIWANAND

JUDGEMENT

(1.) This is a defendant's appeal, the appellant being one Lal Singh Nayal. It appears that Jiwa Nand, plaintiff, had a decree against a man named Makoliya, who was admittedly the father of a joint Hindu family. After the death of Makoliya, Jiwa Nand took out execution, impleading the sons of Makoliya as legal representatives of the judgment-debtor. The family estate was put to sale, and Rs. 700 odd were realized. Before the receipts of the assets defendant-appellant Lai Singh Nayal and defendant-respondent Nitya Nand applied for rateable distribution under Section 73, Civil P.C., and their applications were allowed by the executing Court. It appears from the evidence of Eupua, one of the sons of Makoliya, that after their father's death the four sons accepted liability in respect of a debt due from Makoliya to Lai Singh Nayal and executed separate promissory notes in the sum of Rs. 200 each. This position is not contested by learned Counsel for the defendant-appellant. After the death of Makoliya, Lai Singh Nayal obtained decrees against the sons; and defendant-respondent Nitya Nand also obtained a decree against them on foot of a promissory note which had been executed by Gopia, one of the sons, but which related to a debt due from their father. Gopia executed the promissory note on his own behalf and on behalf of his brothers.

(2.) Jiwa Nand, being aggrieved by the executing Court's order granting rateable distribution to Lai Singh Nayal and Nitya Nand, instituted a suit under Section 73, Clause (2), Civil P.C., claiming that his decrees and the decrees of the two defendants were not passed against the same judgment-debtor within the meaning of Section 73(1), Civil P.C., and therefore the defendants were not entitled to rateable distribution. The suit was dismissed by the trial Court, but has been decreed by the lower Appellate Court. It is against this decree that Lai Singh Nayal has come to this Court in second appeal. Nitya Nand has not appealed. Section 73(1), Civil P.C., provides that where assets are held by a Court and more per. sons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons. 2. Admittedly, the decrees of the plaintiff and of the defendant-appellant (as well as the decree of defendant-respondent, Nitya Nand) are executable against the joint family estate, and it is argued on behalf of defendant-appellant, Lal Singh Nayal, that they must therefore be deemed to have been passed against the same judgment-debtor, as contemplated by Section 73, Civil P.C. The first authority to which I am referred by learned Counsel for the defendant-appellant is Nilmoni Dey V/s. Hiralal Das (1918) 5 A.I.R. Cal. 281. In that case two decrees were obtained against the estate of a deceased testator, each decree being against two out of three executors. One executor was common to both suits, and each decree was prima facie executable against the estate. It was held by a Bench of the Calcutta High Court that the decree-holders were entitled to rateable distribution of the assets under Section 73, Civil P.C., Mookerjee J. observed: Each decree is prima facie capable of execution against the estate of the deceased testator. In these circumstances, we are of opinion that the two decrees may, without unduly straining the language of Section 73,be regarded as passed against the same judgment-debtor, namely they are both decrees against the estate of Bhushan Chunder Bhar, in one case represented by A and B, in the other by B and C. We may add that we are not disposed to put a narrow construction upon the terms of Section 73, so as to defeat the ends of justice. We hold accordingly that the two decree-holders must rateably divide the assets under Section 73.

(3.) This decision is cited as authority for the proposition that decrees which are executable against the same estate must be deemed to be decrees which have been passed against the same judgment-debtor within the meaning of Section 73, Civil P.C. The next case is from Madras, and the facts are very similar to the facts of the case now under appeal. This is a Full Bench decision in Ramakrishnan Chettiar V/s. Kasi Viswanathan Chettiar (1936) 23 A.I.R. Mad. 40. Certain creditors obtained a decree against the sons of a deceased Hindu father in respect of a debt contracted by the latter. Certain other creditors, who had obtained a decree against the father himself, took out execution against the sons as legal representatives of the deceased debtor; and they also obtained decrees against the sons themselves in respect of debts which had been contracted by their father. All the decrees wore executable against the family property of the deceased and his sons, and it was held that rateable distribution was permissible under Section 73, Civil P.C. At p. 41, Pandrang Row J. observed: It is obvious that a strict literal construction of the expression "the same judgment-debtor" cannot be adopted in the sense that the decrees must be against the same persons eo nomine: it has been held in a series of oases that all the judgment-debtors in each of the several decrees need not be identically the same, and that it is sufficient if there is one judgment-debtor common to all the decrees, and this proposition is not denied by the learned advocate for the respondent in these petitions. It has also been held, and here too-there is no dispute, that even though the person against whom the decrees were passed is the same in name, Section 73 will not apply unless that person-occupied the same character in all the decrees; for instance, where one decree was passed against A in his personal capacity and another against him as heir of P, the two decrees are not against the same judgment-debtor. It would therefore seem that the eo nomine construction cannot be the right one,, and the expression the same judgment-debtor is not so simple and clear in its meaning as to dispense with any reference to the general intention of the Section in which it is found. About that intention there can be no doubt, and a construction which defeats that intention no less than the ends of justice should be avoided if the provisions of law are to be interpreted in a reasonable manner.