MULCHAND KESAJI Vs. SHIDDAPPA GURUBASAPPA

JUDGEMENT

(1.) The questions referred to the full bench are as follows:- Where one creditor M has obtained a money decree against H and his two undivided sons, and another creditor S has also obtained a money decree against H alone but not against his sons, and assets are realized by the attachment and sale of the joint family property of H and his sons in execution of M's decree, (1) is S entitled to a rateable distribution in the assets under Section 73 of the Civil Procedure Code, and (2) if so, is only H's share in the assets liable to rateable distribution, or are the entire assets liable to be distributed rateably (a) when S's decree is passed against H as the manager of the joint family or (6) when H's sons are under a pious obligation to pay off their father's debts The first question has to be decided by reference to the provisions of Section 73 of the Civil P. C. and the answer to it depends upon the construction of the words "decrees for the payment of money passed against the same judgment- debtor" which occur in that section. The said section deals with the rateable distribution of the assets held by a Court in execution proceedings and it provides that such rateable distribution shall be made where more persons 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 word "judgment-debtor" has been denned by Section 2(10) of the Code as meaning "any person against whom a decree has been passed or an order capable of execution has been made." Where two or more creditors have obtained decrees for the payment of money against the same identical judgment-debtor, their claims for rateable distribution obviously attract Section 73. It is true that the section speaks of a decree passed against the same judgment-debtor; but it has never been suggested that the section will not apply where decrees are passed against more judgment-debtors than one. In such a ease also, if the several decrees are against more judgment-debtors than one, and these judgment-debtors are in each case identical, Section 73 will obviously apply. Cases, however, often arise where some of the decree-holders have obtained money decrees against more judgment-debtors than one, and some others have obtained similar decrees against one or more, but not all, out of the said judgment-debtors; the question as to whether in such cases the latter decree- holders are entitled to claim rateable distribution out of the assets realised in execution proceedings instituted by a decree-holder of the former class has given rise to conflicting decisions. If the section is literally construed, it may mean that if there is one judgment-debtor he should be the same judgment-debtor in all the decrees, and if there are more judgment-debtors than one they should similarly be the same in all decrees, before the said decrees could be said to have been "passed against the same judgment-debtor". If this strict literal interpretation of the material words is accepted, the answer to the first question referred to the Full Bench may have to be in the negative.

(2.) But this narrow eo nomine construction is obviously open to the objection that the identity of the judgment-debtor alone is not enough to attract Section 73. There is no doubt that before Section 73 can be applied, it must also be shown that the said identical judgment- debtor occupies the same legal character in all the decrees. This requirement as to the identity of the legal character which has to be satisfied before Section 73 could be applied cannot, strictly speaking, be introduced if the said narrow literal construction is put on the material words. To this extent at any rate this eo nomine construction of the words fails to carry out the real object of Section 73.

(3.) In the case of decrees passed against more judgment-debtors than one, if it is insisted that all the judgment-debtors must be the same before Section 73 can. be applied, it would lead to the somewhat illogical result that a decree passed against A and B cannot be said to be a decree passed against the same judgment-debtors as that against A, B and C for the reason that judgment-debtor C is not a party judgment-debtor to it. Both the decrees are against A and B, and to that extent there should prima facie be no difficulty in treating them as passed against the same judgment-debtors. It seems to me that it is possible to hold, without doing violence to the language of Section 73, that in the case of decrees passed against more judgment-debtors than one it may be said that they are decrees passed against the same judgment-debtors even if amongst the different sets of judgment-debtors one or more, but not all, are identical. In such cases Section 73 may legitimately be applied, though it may be that in deciding the actual details of rateable distribution some complicated inquiries may become necessary. In this connection it may perhaps be permissible to note that Clause (c) to the proviso to Section 73 which deals with the rateable distribution of the proceeds of sale falling under that clause refers to "holders of decrees for the payment of money against the judgment-debtor" and not against the same judgment-debtor.