1981 Supreme(MP) 368

P. D. Mulye, J.
Lalji v. Naru
C. Revn. No. 202 of 197R (I) Decided on 6-7-1981.

Headnote:(1) Civil P. C., 1908 -- O. 21, R. 2 -- payment out of Court to one of the decree holders -- decree is satisfied to the extent of his own share only.

        (2) Civil P. C., 1908 -- O.47, R. 1 - review -- when not justified -- party aggrieved not filing any appeal or revision -- suo motu review is not justified.

        The learned counsel for the applicants contended that the learned Executing Court had no jurisdiction or authority to review the earlier order dated 13-9-74 passed by his predecessor that according to the provisions of O.21, R. 15 CPC it was incumbant on the Executing Court to protect the interest of the petitioner as Dhapu Bai admittedly had not joined in the execution petition. Thus according to the learned counsel the impugned order is manifestly illegal and deserves to be set aside and in support of this submission he placed reliance on the decisions reported in AIR 1953 Bombay, 137 ( Valchand Gulabchand Shah v. Manekbai Hirachand Shah) and AIR 1971 Assam, 153 ( Mohamad Ali v. Haji Rashid Ali ) wherein it has been held that in cases of payment by judgment debtor out of Court to one of the several decree holders, a joint decree holder cannot give valid discharge in respect of the entire decree, but can give discharge only to the extent of his interest in the decree.

        As against this the learned counsel for respondent No. 2 Naru contended that the learned Executing Court had the jurisdiction to pass the impugned order suo motu and that this is not a fit case in which this Court should exercise its revisional powers.

        Held: After hearing the learned counsel for the parties and going through the record I have reached the conclusion that this revision petition deserves to be allowed for reasons stated hear in after. Admittedly there was a joint money decree and the respondent Dhapu Bai was only one of the legal representatives of her father Sawant. The execution petition was also filed by the petitioners in which the legal representative of Sawant had not joined. In these circumstances Dhapu Bai had no authority to realise the entire decretal amount and give a complete discharge to respondent No.2 Naru. In fact the earlier order of the executing Court dated 13-9-74 clearly mentions that only 1/3rd of the decretal amount which fell to the share of the legal representatives of Sawant can be said to have been satisfied and to that extent only the same could be deducted from the amount claimed in the execution petition. No appeal or revision was filed against that order by Naru. In fact it further appears that for realising the decretal amount the movable properly of Naru was attached and notice under Order 21 rule 66 CPC was also issued but he raised no objection and it is surprising how all of a sudden the learned Executing Court thought it proper to review the earlier order dated 13-9-74 for which there was absolutely no justification. Therefore, I find that the impugned order dated 23-1-78 is patently illegal and without jurisdiction as it could not review its own order in this manner. AIR 1953 Bombay 137 and AIR 1971 Assam 153 referred to.

        Revision allowed.