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Dhondhey Prasad v. Sewak And Others

Allahabad High Court

Jan 12, 1954

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

A mortgage decree was passed in favour of three brothers — Ram Sewak, Ram Sudhist and Ram Naresh — against one Sewak (a minor), who is respondent No. 1 in the appeal. After the decree, a two‑third share belonging to two of the brothers (Ram Sewak and Ram Naresh) was paid off and the Court recorded satisfaction in respect of that payment. Only the remaining one‑third share belonging to Ram Sudhist remained unsatisfied.

Dhondhey Prasad, son of Ram Sudhist, applied for execution in respect of the entire decretal amount. The judgment‑debtor objected that execution should proceed only in respect of the remaining one‑third share belonging to the applicant decree‑holder, because the two‑third share of the other decree‑holders had been paid and satisfaction entered.

The execution Court upheld the judgment‑debtor's objection and allowed execution only in respect of the remaining one‑third. The decree‑holder appealed; his first appeal was dismissed. He filed a second appeal to the High Court, which is the subject of this opinion.

Legal Issues Presented

Whether, when two of three joint decree‑holders have been paid their shares and satisfaction has been recorded in Court, a remaining decree‑holder can nevertheless proceed with execution for the whole decretal amount.
Whether Order XXI, Rule 1 of the Civil Procedure Code requires payment to all decree‑holders jointly at one time so as to forbid separate/partial payments to decree‑holders who have separate interests.
Whether Order XXI, Rule 15 permits one decree‑holder to execute the whole decree for his own benefit when other decree‑holders' shares have already been paid and recorded as satisfied.
Whether the execution Court may recognise and record partial satisfaction (payment) of the decretal amount where shares of joint decree‑holders have been paid separately.

Arguments of the Parties

Appellant (decree‑holder) — principal arguments

The appellant argued that the term "decree‑holder" in O.21, R.1 CPC should be read to include the plural "decree‑holders" and that payment must therefore be made to all decree‑holders jointly at one time.
The appellant contended that partial payment to some decree‑holders should not be recognized by the Court and should be ignored in execution proceedings, so that the executing decree‑holder can press for the whole decretal amount.
The appellant argued that the execution Court cannot go behind the decree and that, because the decree itself did not specify separate shares, the decretal amount's integrity could not be broken in execution.

Respondents (judgment‑debtor / minor respondent) — principal points

The judgment‑debtor objected that, since two‑thirds of the decretal amount (the shares of the other two decree‑holders) had been paid and satisfaction recorded, execution should be limited to the remaining one‑third belonging to the applicant decree‑holder.
The minor respondent complained (as a grievance) that redemption was being protracted by the decree‑holders adopting delaying tactics; this grievance was noted by the Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohomed Silar Sahib & Co. v. Nabi Khan Sahib, AIR 1917 Mad 988	Held that payment to two out of three joint decree‑holders cannot be treated as satisfaction (even in part) unless admitted by the third or unless it is proved that the payees and the third owned separate and definite shares.	The Court observed that in the present case it had been established that the two other decree‑holders owned separate and distinct shares; accordingly this precedent was of no avail to the appellant.
V.N. Muthuswamy Iyer v. V.S. Narasimha Ayyar, AIR 1934 Mad 330	Held that satisfaction of the whole decree entered upon the report of one of the joint decree‑holders alone would violate O.21, R.15 CPC.	The Court treated this authority as distinguishable on facts (it involved a firm of brothers in a joint Hindu family) and noted that in the present case only partial satisfaction (two‑thirds) had been recorded, not satisfaction of the whole decree.
Hanumanthappa v. Seethayya & Co., AIR 1949 Mad 790 (Full Bench)	Full Bench decision that did not approve the views taken in certain earlier Madras decisions (implicitly relevant to payment/certification issues among joint decree‑holders).	The Court noted that a Full Bench of the Madras High Court did not approve the view of the two earlier cases cited for the appellant, implying support for the approach adopted in the present opinion.
Moti Ram v. Hannu Prasad, 26 All 334	Held that it was not open to one of two or more joint decree‑holders to certify payment of the entire decree without authorization from the others.	The Court observed these Allahabad decisions were inapplicable because, in the present case, the other decree‑holders had certified payment only of their own shares, not of the entire decree.
Lachman Das v. Chaturbhuj Das, 28 All 252	Similar principle as Moti Ram — a co‑decree‑holder cannot unilaterally certify satisfaction of the whole decree.	The Court held this authority did not apply for the same reason: only partial payment of shares had been certified by the two other decree‑holders.
Adikando Panigrahi v. Yetiraju Narayanaswami, AIR 1943 Pat 188	Held that one of two joint decree‑holders cannot certify satisfaction of the whole decree so as to bind the other, although he can certify satisfaction in respect of his own interest in the decree.	The Court regarded this as stating the correct law on the point and relied on it in concluding the appeal lacked substance.
Ram Dutt v. Deota Din, AIR 1918 Oudh 91	Held that where money is advanced by two co‑mortgagors without specification of shares, there is a presumption that each advanced half; if one accepts satisfaction of his interest, the outstanding mortgage interest is that of the other (half).	The Court cited this case as supporting the respondents' contention about the effect of partial satisfaction of interest by one or some co‑mortgagees.

Court's Reasoning and Analysis

The Court analyzed the statutory provisions (noting specifically O.21, R.1 and O.21, R.15 of the Civil Procedure Code) and the factual matrix before it. The reasoning proceeded in the following steps, as set out in the opinion:

The Court first recorded that the appellant did not claim entitlement to the entire decretal amount nor did he deny that the two other decree‑holders were entitled to the two‑third share that had been paid to them or to their heirs.
The appellant relied on O.21, R.1 CPC, which provides that "All money payable under a decree shall be paid ... to the decree‑holder." The appellant's contention was that "decree‑holder" must be read to include the plural and therefore payment must be made to all decree‑holders jointly at one time.
The Court rejected that interpretation as requiring the addition of words not found in the statute. It observed that the statutory language does not contain "all" nor "jointly at one time" and that the statute permits payment to a decree‑holder or decree‑holders; where decree‑holders have separate interests, separate payments of respective shares are not barred.
The Court explained practical difficulties and inequities that would arise from accepting the appellant's strained interpretation (for example, when a decree‑holder is abroad or untraceable), and noted that such an interpretation would permit remaining decree‑holders to ignore partial payments and insist on the whole amount — a result the Court found inequitable.
Turning to O.21, R.15, the Court observed that the rule allows one or more joint decree‑holders (unless the decree provides otherwise) to apply for execution of the whole decree "for the benefit of them all" and permits the Court to make orders to protect absent decree‑holders. The Court emphasized that the right to apply for execution of the whole is neither unconditional nor inherent; it is a matter of Court discretion and is exercisable only for the benefit of all the decree‑holders.
The Court held that a decree‑holder seeking execution of the whole decree when other decree‑holders have been paid is, in the present case, seeking execution for his own benefit rather than for the benefit of all, which is contrary to the spirit of O.21, R.15(1). It noted that the Court can impose conditions (O.21, R.15(2)) to protect absent parties, including requiring deposit into Court and limiting payment to respective shares.
On the contention that the execution Court could not "go behind" the decree because the decree did not specify shares, the Court found this argument unpersuasive. The decree was silent on mode of satisfaction and did not expressly require payment in one instalment; O.21, R.2 contemplates partial satisfaction. The Court noted that if rights were separate prior to the decree, the decree's interposition does not alter those separate rights for the purpose of satisfaction.
The Court reviewed the authorities cited by both sides. It distinguished decisions that were factually different (e.g., where a joint Hindu family or firm was involved) and relied upon Adikando Panigrahi (AIR 1943 Pat 188) and Ram Dutt (AIR 1918 Oudh 91) as supporting the proposition that a joint decree‑holder may certify satisfaction of his own share but cannot bind co‑decree‑holders by certifying satisfaction of the whole.
Having applied the statutory provisions and precedents to the facts (two decree‑holders paid and satisfaction recorded in respect of their shares; the applicant seeking execution only for his remaining one‑third), the Court concluded the appellant's case lacked substance.

Holding and Implications

Holding: The appeal is DISMISSED.

Direct consequences: the execution Court's decision to allow execution proceedings to continue only in respect of the remaining one‑third share belonging to the appellant decree‑holder is upheld; the appellant is ordered to pay costs. The Court granted leave to appeal to a Bench.

Broader implications: the opinion applies established principles rather than announcing a new rule of law. It affirms that where joint decree‑holders have separate and divisible shares, payment of those shares and recording of satisfaction in Court is permissible and may limit subsequent execution to unpaid shares; and that O.21, R.15 allows a decree‑holder to apply for execution of the whole only for the benefit of all and subject to Court discretion and conditions. The opinion does not purport to set a novel precedent beyond applying and distinguishing earlier authorities.

D.H.Z

Show all summary ...

1. This appeal arises out of execution proceedings. It would appear, that a mortgage decree was passed in favour of three brothers, namely, Ram Sewak, Ram Sudhist and Ram Naresh against one Sewak, minor, who is respondent No. 1 in this appeal. After the said decree was passed, a two-third share belonging to two of the brothers, namely, Ram Sewak and Ram Naresh was paid off and only the remaining one-third share belonging to Ram Sudhist remained unsatisfied. Dhondhey Prasad son of Ram Sudhist put in an application for execution in respect of the entire amount of the decree. An objection was made on behalf of the judgment-debtor that the two-third share belonging to the two other decree-holders having been paid off and satisfaction in respect of the said payment having been recorded by the Court, execution should be allowed to proceed only in respect of the remaining one-third share belonging to the applicant decree-holder.

2. On behalf of the decree-holder, it was argued that payment should have been made to all the decree-holders and any partial payment of the decree in respect of the shares of the other decree-holders cannot be recorded or recognized by the Court and should therefore be ignored altogether. The execution Court gave effect to the objection of the judgment-debtor and held that execution could be allowed to proceed only in respect of the remaining one-third share belonging to the appellant decree-holder. The decree-holder took the matter up in appeal. His appeal having been dismissed, he has filed this second appeal in the High Court.

3. Having heard learned Counsel for the appellant, I am of opinion that this appeal must be dismissed. It may be noted at the very outset that it is not claimed on behalf of the appellant decree-holder that he is entitled to the entire amount of the decree nor is it stated on his behalf that the two other decree-holders were not entitled to two-third share which has been paid off to them or to their heirs. On behalf of the decree-holder reliance has been placed on the provisions of O. 21, R. 1 of the CPC which provides as follows:

“All money payable under a decree shall be paid as follows, namely—

(a) ……….

(b) out of Court to the decree-holder; or

4. It is argued by the learned Counsel that the word ‘decree-holder’ must include the plural, ‘decree-holders’, hence payment must be made to all the decree-holders jointly at one time. The statute itself neither contains the word ‘all’ nor the words “jointly at one time”. All that it connotes is that payment must be made to the decree-holder or decree-holders, and if they are shown or proved to have separate interests, in my opinion, separate payment to each of the decree-holders of their respective shares in the decretal amount is not barred nor prohibited. The statute, as it stands, does not postulate the joint concurrence of all the decree-holders as a condition precedent of satisfaction of the decree. An interpretation of statute that cannot be supported except by the addition of words not found in the body of the statute itself is a strained one and must be rejected as unwarranted. The interpretation sought to be given to this provision of law by the learned Counsel for the appellant if accepted might result in hardship in certain cases where a joint decree is passed in favour of a number of decree-holders having separate and divisible shares in the decretal amount.

5. If, for example, one of the decree-holders has gone abroad or is untraceable for the time being, then according to the interpretation placed by the learned Counsel for the appellant, it would not be possible for the judgment-debtor to pay off the share or shares of the remaining decree-holders out of Court. Nor would it be possible for the remaining decree-holders to accept out of court payment of their shares in the decretal amount in partial satisfaction of the decree. It would also not be possible for the Court to record satisfaction of such payment in Court. Further where partial payment of the respective shares of other decree-holders has been made by the judgment-debtor, it would enable the remaining decree-holders to still insist on the payment of the entire amount and to ask the Court to disregard such payment in execution proceedings. This is exactly what has happened in this case. The situation created would certainly be inequitable.

6. On behalf of the minor respondent a serious grievance has also been made that in spite of the fact that the mortgage-decree is a long standing one, its redemption by the minor is being protracted by the decree-holders by the adoption of such delaying tactics. I would be loath to place an interpretation that might lead to consequences so unfair, unless the words of the statute clearly warrant it.

7. The learned counsel also placed reliance on the provisions of O. 21, R. 15 of the CPC. Order 21, R. 15 provides as follows:

“(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.”

8. I do not see how the above provision of law deprives a judgment-debtor from paying off the share of one of the decree-holders. All that it says is that one of the joint decree-holders can take out execution of the whole decree for the benefit of the entire body of decree-holders. In the present case the other decree-holders have been paid off, and yet the remaining decree-holder is seeking execution of the whole decree. He is, therefore, seeking execution of the whole decree not for the benefit of the entire body of the decree-holders but obviously for his own benefit. This interpretation is, therefore, contrary to the spirit of O. 21, R. 15(1).

9. This matter can be put in another form. Under the provisions of O. 21, R. 15(1) where one of the decree-holders proceeds to execute a decree on behalf of all the decree-holders, he can do it only for the benefit of all of them. This, however, is not an unconditional or inherent right of the decree-holder. It is within the discretion of the Court to allow it. The Court in according its permission cannot shut its eyes to the equities of the case. Thus by adopting the procedure prescribed by O. 21, R. 15(1) the decree-holder places himself at the mercy of the Court, who can refuse to allow him to proceed. Further in such a case, under sub-clause (2) of O. 21, R. 15 it is open to the Court to allow such an application on such conditions as it seems necessary to impose for protecting the interests of the other persons who have not joined in the application.

10. It would, therefore, be open to the Court in such a case to impose a condition that the entire money be deposited in Court and that out of it the applicant decree-holder should be allowed to be paid only one-third of the amount of the decree and not the remaining two-thirds which has already been paid off. In this particular case there seems to be a conflict between the three decree-holders and a direction like that would be justifiable under the provisions of O. 21, R. 15(2); of the CPC. If the Court could impose a condition like that and stop in the end the eventual payment of two thirds of money realized as a result of execution there seems to be no reason why the Court should not allow the satisfaction of two-thirds of the decree to be recorded in Court and allow the execution proceedings to go on only with respect to the remaining one-third from the very beginning. This is certainly a more convenient and expeditious mode of achieving the same purpose which is both just and equitable.

11. The learned counsel for the appellant also argued that it is not open to the execution Court to go behind the decree in view of the fact that the shares of the various decree-holders have not been specified in the decree itself. I am unable to see how by allowing payments of the respective shares of each of the decree-holders separately, the provisions of the decree are in any way contravened. The decree no doubt does not specify the separate shares of the various decree-holders. On the other hand, it does not also state that the payment of the decree has to be madel in one instalment and not separately. There is nothing in the decree itself expressly stating or indicating that integrity of the decretal amount, cannot be broken in execution proceedings. The decree itself is quite silent on the point and does not say anything one way or the other as to the manner or mode in which the decree is to be satisfied.

12. It may be mentioned in this connection that the learned counsel has not stated that the other two decree-holders did not have separate shares in the amount of the decree. On the other hand, the grounds of appeal filed by him indicate that this is not a case of a joint Hindu family in which case the interests of the various decree-holders could not be considered to be separate or divisible. Reference in this connection may also be made to O. 21, R. 2 which does contemplate partial satisfaction of the decree. If the rights of the several decree-holders were actually separate prior to the decree, I do not see how the interposition of a decree can vary them for the purposes of its satisfaction.

13. Learned counsel for the appellant has relied on — ‘Mohomed Silar Sahib & Co. v. Nabi Khan Sahib’, AIR 1917 Mad 988 (A), in which it was held that payment of the amount of a decree to two out of three joint decree-holders cannot be treated as satisfaction of the decree even in part unless it is admitted by the third decree-holder or unless it is proved that he and the other two decree-holders to whom the money was paid owned separate and definite shares in the joint decree debt. In this particular case, it has been established that the two other decree-holders owned separate and distinct shares in the decree. This ruling, therefore, is of no avail to the learned counsel.

14. The learned counsel for the appellant also relied on a Bench decision of the same High Court reported in — ‘V.N Muthuswamy Iyer v. V.S Narasimha Ayyar’, AIR 1934 Mad 330 (B). In this case it was held that satisfaction of the whole decree entered upon the report of one of the joint decree-holders alone would amount to a violation of the provisions of O. 21, R. 15 of the CPC. It may be mentioned that this was the case of a firm consisting of the brothers of a joint Hindu family. The facts of the present case, therefore, are distinguishable from this case. Moreover, in the present case, satisfaction has not been recorded of the whole decree but only of a part of the decree, i.e, in respect of the share of the two of the decree-holders. The satisfaction recorded is not in excess of their share.

15. Further, it may be noted that the view of law taken in the above two cases cited on behalf of the appellants by their learned counsel was not approved of by, a Full Bench of the Madras High Court itself. This case is reported in — ‘Hanumanthappa v. Seethayya & Co.’, AIR 1949 Mad 790 (FB) (C). The learned counsel also relied on two cases of the Allahabad High Court reported in — ‘Moti Ram v. Hannu Prasad’. 26 All 334 (D) and — ‘Lachman Das v. Chaturbhuj Das’, 28 All 252 (E) in which it was held that it was not open to one of two or more joint decree-holders to certify payment of the entire decree without being authorized by the other or others to do so. As already mentioned, in the present case the other decree-holders have not certified the payment of the entire decree. They have only certified payment of their own share of the decree. Thus, neither of the two Allahabad cases cited by the ‘learned counsel for the appellant have any application to the present case.

16. In my opinion, the correct law on the point has been laid down by Fazl Ali J. (later on a judge of the Supreme Court of India) in the case reported in — ‘Adikando Panigrahi v. Yetiraju Narayanaswami’, AIR 1943 Pat 188 (F). In this case, it was held that it is not open to one of the two joint decree-holders of a decree to certify satisfaction of the whole decree so as to bind the other decree-holder although he can certify satisfaction in respect of his own interest in the decree. The learned counsel for the respondents has invited my attention to a case reported in — ‘Ram Dutt v. Deota Din’, AIR 1918 Oudh 91 (G) in which it was held that where money is advanced by two co-mortgagors without any specification of shares, the presumption is that each of them advanced half the money; and if one of them accepts satisfaction of his interest as mortgagee from the mortgagor he result is that the only mortgagee interest outstanding is the interest of the other co-mortgagee which extends to half of the mortgage money. This case supports the contention advanced on behalf of the respondents. Having given my serious consideration to this case, I have come to the conclusion that this appeal has no substance. It is accordingly dismissed with costs. Leave to appeal to a Bench is asked for and is allowed.