SURENDRA KUMAR Vs. ABHAY KUMAR DAS

JUDGEMENT

(1.) One of sixteen decree-holders is the appellant in this case. All the decree-holders obtained a decree for costs against the judgment-debtors. The appellant applied for execution of the entire decree making the other decree-holders parties to his application under Order 21, Rule 15, Civil P.C. The judgment-debtors appeared and they alleged that they had paid a certain sum of money to the other decree-holders as their shares of the decretal amount. The other decree-holders admitted that they had received that sum, which is said to be Rs. 575. The appellant contended that the other 15 decree-holders were not entitled to so much of the decretal amount in their shares and. he asked the Court to decide what his share of the decretal amount was and to execute the decree as against the judgment-debtors for that amount. The judgment-debtors deposited the balance of the decretal amount and they alleged that they had paid Rs. 575 bona fide to the other decree-holders and were depositing the balance of the decretal amount and therefore the appellant petitioner cannot pursue them further but if he is entitled to get more in his share than what has been deposited he can pursue his remedy against the other decree-holders.

(2.) The learned Subordinate Judge has accepted that plea and has allowed execution to proceed for the balance of the decretal amount after crediting the judgment-debtors for the amount certified as paid to the other decree-holders. The petitioning decree-holder appeals against that order and his contention is that the Court ought to have decided what his legitimate share was in the decretal amount and to allow him to execute the decree for his share as against the judgment-debtors. It seems to me that his contention is supported by a series of authorities. A judgment-debtor cannot claim to be exonerated from his liability to pay the actual amount due to a joint decree-holder for his share by payment of either the whole or a part of the decretal amount to some other of the joint decree-holders. The cases to which our attention has been drawn by the learned advocate for the appellant are Mt. Bibee Budhun V/s. Mt. Hafezah 4 C.L.R. 70, Tarruck Chunder V/s. Divendro Nath [1883] 9 Cal. 831 and Umrao Beg V/s. Mukhtar Beg A.I.R. 1923 Al. 494. The principle which an be derived from these cases is that when there is a joint decree, payment to one decree-holder does not amount to an acquaintance by all the decree-holders and this principle is reasonable having regard to the provisions of Order 21, Rule 1, Civil P.C., under which a judgment-debtor can always pay the decretal amount into Court whose duty it is to execute the decree. If the judgment-debtor chooses to pay any one of the several decree-holders out of Court he seeks trouble for himself and cannot complain if he has to pay twice over. It is not sufficient for the judgment-debtor to say that a joint decree-holder may sue the other-decree-holder for recovery of his own share of the decretal amount, as the joint decree-holder can execute the decree for his own share of the decretal amount.

(3.) The order of the learned Subordinate Judge must, therefore, be set aside and the case sent back to the lower Court for an enquiry as to the share of the decretal amount due to the petitioning decree-holder. After that is found he will be entitled to execute the decree for the full amount due to him as against the judgment-debtors. If the judgment-debtors had paid more than what was due to the other decree-holders, that is their affair. If it is found that the appellant is entitled to execute the decree for a larger sum than the amount for which execution has been allowed by the lower Court he would be entitled to his costs of this appeal, otherwise each party will bear his own costs. We assess the hearing fee of this appeal at three gold mohurs. S.K. Ghose. J.