1989 Supreme(MP) 233

R.C. Lahoti, J.
Hasmatullah v. Sunil Kumar.
C. R. No. 155 of 1988 (G); Decided on 10-8-1989.

Headnote:Civil P.C. 1908-O.21, R.15 and S.35-join decree-amount of costs separately stated to be paid to each decree-holder-one of the decree holder cannot give valid discharge.

       flfoy izfdz;k lafgrk] 1908&vkŒ 21] fuŒ 15 ,oa /kkjk 35&laqDr fMdh&[kpZ dh jde izR;sd fMdhnkj dks i`Fkd Hkqxrku fd;k tkuk dfFkr&fMdhnkjksa esa ls ,d fof/kekU; mUekspu ugha dj ldrkA

        It appears that the three defendants (applicants No.1. and 2 and the Don-applicant No.3) filed a joint execution petition. A warrant for recovery was issued. The warrant was returned unexecuted by the bailiff with an endorsement that though the decree-holder Hasmatullah wanted the attachment to be effected but it was resisted by the judgment-debtor and at the same time decree-holder Tejsingh (Non-applicant No. 3.) appeared stating that he had recovered the entire amount of decree from one of the judgment debtors. This endorsement of the bailiff was subscribed to by Tejsingh, non-applicant No.2, by putting a thumb mark. Tejsingh filed an affidavit to the same effect before the executing Court also. The position was disputed by the other two decreer-holders, applicants herein, and hence the Court directed an enquiry.

        The grievance of the applicants is that the amount payable under the decree having been not recovered to them, there was no occasion for holding any enquiry and the executing Court ought to have secured execution of warrant of attachment.

        Held : In so far as the decree of the trial Court is concerned, the case does not pose any problem. The decree as to costs is a joint decree in favour of the three defendants but the amount of costs payable to each of them is separately stated. Each is entitled to recover Rs. 703.50 p. from the plaintiff. Where decree is joint but the amount recoverable to each of the decree holders is apportioned or separately stated, they may file a joint application for execution which is a convenient mode of execution. (See Kesaran v. Krishnan (A.I.R. 1952 T.C. 575) and Ratnakar Singh v. Rudrapratap (A.I.R. 1935 All. 402). However, that does not mean that anyone of the execution applicants would be entitled to give a valid discharge to the decree or receive payment on behalf of all the decree-holders terminating the liability of the judgment-debtor.

        One of the joint decree-holders cannot receive payment and/or give a valid discharge to the decree on behalf of all the decree-holders. A joint decree may be put to execution by any of the joint decree-holders unless the decree expresses a contrary intention but that has to be done for the benefit of all, as is apparent from rule 15 of order 21. Though there is a principle of agency attracted to the case joint decree-holders but that principle carries a distinction in the matter of rights from those under the general law. Right and privilege of one of the joint decree-holders in validly applying for execution for the benefit of the entire body of joint decree holders does not mean that one decree-holder Can validly and legally set at naught the rights of other decree-holders. In Fatimabi and others v. Mt. Tukabai and others (AIR 1945 Nagpur 95), the decree was one necessarily to be treated as a decree in favour of several partners and it was held that the payment to one of the partners would not be binding on other decree-holders. In Ramkrishna and another v. Shankar and others (A.I.R. 1935 Nagpur 25), it was held that in the case of joint decree-holders a payment made out of Court by the judgment-debtor to one of them can only absolve the judgment-debtor in respect of share of that particular decree-holder. In Shital Prasad v. Dhan Kumar (AIR 1974 All. 175), it was held that one out of several decree-holders needs to have special and specific authorisation from the other decree-holders to enter into a compromise or adjustment on behalf of all the other decree-holders. [Also see Lalji v. Naru (1982 M. P. W. N. 62)].

        The decree of the High Court would not present any problem for the above said propositions of law. It is a decree awarding costs jointly to the three defendant/respondents therein (the two applicants and the non-applicant No.3). The non-applicant No.3 could have admitted payment or given a discharge but only to the extent of his share and could never have bound the other two decree-holders (two applicants) by his act. As such, the executing Court was not at all justified in withholding the execution of warrants of attachment and directing an enquiry in so far as the two applicants are concerned.

        In the abovesaid circumstances, it is directed that the executing Court shall proceed to issue warrant of attachment afresh in so far as the amount of costs payable to the two applicants under the decree of the trial Court is concerned as also in respect of the proportionate share of the two applicants in so far as the decree of High Court is concerned which awards costs to the three defendants jointly. In so far as Tejsingh, non-applicant No.3 is concerned, he has not chosen to challenge the impugned order and as regards him, the executing Court may proceed in accordance with the impugned order. For the sake of clarity, the executing Court would do well to ask the two applicants to clearly specify the amount payable to them and also to file certified copies of the decrees under execution. AIR 1952 TC 575, AIR 1935 All. 402, AIR 1945 Nag. 95, AIR 1935 Nag. 25 and AIR 1974 All. 175 and 1982 MPWN 62 relied on. Revision partly allowed.