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Makund Rao vs Janki Bai And Anr.

High Court Of Judicature at Allahabad|28 January, 1908


JUDGMENT Aikman and Karamat Husein, JJ.
1. This appeal arises out of an application to execute a decree, dated the 9th of June 1893, which was passed in favour of the respondents Musammat Janki Bai and Musammat Lachmi Bai against six persons, namely, Atma Ram, Sita Ram, Bal Kishen, Raghunath, Krishan and Madho Rao. The appellant here is the son of the last-named judgment-debtor. The decree was for the sum of Rs. 5,091-9-0 and for costs and interest. It appears that all the judgment-debtors save Madho Rao took the benefit of the Bundelkhand Encumbered Estates Act, 1908. The usual notification was issued calling upon creditors to submit their claims. The respondents decree-holders put in their claim against the applicants, but, unfortunately for themselves, they did not put forward their claim within the time required by the Act, and the Special Judge refused to consider it. Now there is in the Act a very stringent provision to be found in Section 12, which runs as follows: "Every claim against the proprietor in respect of a private debt shall, unless made within the time and in the manner required by this Act, be deemed for all purposes and on all occasions to have been duly discharged." That the judgment debt is a private debt within the definition of Section 2 of the Act does not admit of any doubt. It follows from the provisions of Section 12 that, so far as the liability of the five judgment-debtors who took advantage of the Act is concerned, the decretal debt must be deemed to have been duly discharged. As the respondents decree-holders could not proceed against the other judgment-debtors, they seek now to recover from the appellant the whole of the judgment-debt. The appellant took objection in the Court below that under the circumstances he was only liable for his proportionate share of the decretal amount. This objection was overruled by the learned Subordinate Judge who held that the decree being a joint one each judgment-debtor is liable for the whole of it. This is no doubt true, but we are of opinion that the learned Subordinate Judge did not give due effect to the terms of Section 12 of Local Act No. I of 1903 quoted above. No doubt when a joint decree is passed against several judgment-debtors the decree may be executed against any one of these judgment-debtors, and if one of them satisfies the whole of the decree he would have his remedy by taking proper steps to enforce a right of contribution against his co-judgment-debtors. But even a joint decree can only be executed for such part of the decretal debt as has not been discharged. In our opinion the effect of Section 12 of the Encumbered Estates Act is to discharge the decree to the extent of the joint liability of the five judgment-debtors who took advantage of the Act. It appears to us that the respondents cannot treat the provisions of this section as a nullity and seek to enforce a judgment debt which has by the provisions of the law been pro tanto duly discharged. If the appellant had to satisfy the whole of the debt, we are of opinion he could not enforce any right of contribution against his co-judgment-debtors, as they could rely on the terms of the Act and plead in answer to a suit for contribution that their share of the judgment debt must be deemed for all purposes to have been discharged. This result would be owing, not to any fault on the part of the appellant, but to the laches of the respondents in not having put forward their claim before the Special Judge within the time allowed by law. We think, therefore, that the order of the Court below disallowing the appellant's objection was wrong. We allow the appeal, and, setting aside the order of the Court below, remand the case to that Court with directions to proceed with the execution on the basis that the appellant is not liable for the whole of the judgment-debt but only for his proportionate share thereof. The appellant will recover from the respondent 1/1 1/2 of the costs incurred by him in this Court. The respondents will recover from the appellant 1/12 of the costs incurred by them in this Court. The costs in the Court below will abide the result.
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Makund Rao vs Janki Bai And Anr.


High Court Of Judicature at Allahabad

28 January, 1908
  • Aikman
  • K Husein