{"id":43050,"date":"1951-11-08T00:00:00","date_gmt":"1951-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rangamma-vs-rangamma-and-ors-on-8-november-1951"},"modified":"2016-01-21T17:54:53","modified_gmt":"2016-01-21T12:24:53","slug":"rangamma-vs-rangamma-and-ors-on-8-november-1951","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rangamma-vs-rangamma-and-ors-on-8-november-1951","title":{"rendered":"Rangamma vs Rangamma And Ors. on 8 November, 1951"},"content":{"rendered":"
Karnataka High Court<\/div>\n
Rangamma vs Rangamma And Ors. on 8 November, 1951<\/div>\n
Equivalent citations: AIR 1952 Kant 121, AIR 1952 Mys 121, ILR 1952 KAR 190, (1953) 31 MysLJ<\/div>\n
Author: Balakrishnayya<\/div>\n
Bench: Balakrishnayya, V Murthy<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Balakrishnayya, J. <\/p>\n
 1. This is a decree-holder’s appeal. She filed Execution Case No. 26 of 48-49 for enforcement of the decree for maintenance against the charged properties. Judgment-debtor 4 pleaded that the application is barred by time. Both the lower Courts have upheld his plea and dismissed the application. This appeal is filed against the order of the first appellate Court.\n<\/p>\n
2. The facts leading to the case, briefly stated, are as under. In O. S. No. 245 of 40-41, filed by the plaintiff, a decree was passed ex-parte on 10-1-1942 against all the defendants for a sum of Rs. 600\/- being arrears of maintenance claimed and future maintenance was awarded at Rs. 125\/- per annum; the decree amount was made a charge on the plaint schedule properties. Subsequently, defendant 1 applied to the Court for setting aside the ex parte decree and the decree was set aside only as against defendant 1 leaving the decree intact as against the others. The plaintiff and defendant 1 then entered into a compromise and a decree in terms of the compromise was passed on 26-1-1943, one of the terms being that the plaintiff should be delivered Item 3 of the plaint schedule absolutely in lieu of maintenance. The said property (Item 3) was in the possession of defendant 4 as mortgages. (For the sake of convenience, the decrees will be referred to hereafter as “the ex parte decree” and “the compromise decree” respectively).\n<\/p>\n
3. The decree-holder filed an application for execution in Execution Case No. 241 of 43-44 on 4-11-1943 which was dismissed on 27-10-1944. Again, another application Execution Case No. 394 of 45-46 was filed on 21-3-1946 and was dismissed on 10-1-1947. The present execution petition was filed on 12-1-1948. The first two applications were for enforcing the terms of the compromise decree. Judgment-debtor 4 having raised the objection that the terms of the compromise decree were not binding upon him, it was held by this Court in the final appeals in both the cases viz., ‘S. As. Nos. 528 of 1944-45 and 437 of 1947-48’, that defendant 4 was liable only under the ex parte decree and the terms of the compromise decree were not enforceable against him. It need hardly be stated that judgment-debtor 4, the contesting respondent here, and the other judgment-debtors were all made parties to both the applications. The application now under consideration is for the enforcement of the terms of the ex parte decree. It is contended that the application is barred by time.\n<\/p>\n
4. The main point that falls for consideration is whether the earlier applications which were concerned with the execution of that portion of the decree by compromise against judgment-debtor 1 keep alive the ex parte decree against the others. For that purpose, the nature of the decrees passed in the original suit has to be determined. The Courts below have misconceived the position and proceeded on the assumption that there are two separate and distinct decrees, distinguishing the portions of the subject-matter of the suit. We are unable to support that decision.\n<\/p>\n
5. In order  to constitute several  and  separate   decrees,   the   subject-matter   of  the   suit must be apportioned between the different defendants and each has to be made liable for a portion, the total of all the portions giving the whole of the relief claimed in the decree. “Where a decree is obtained against a  number of persons and the decree requires each judgment-debtor to  pay his  own share  only of the decretal amount and costs, it must be considered   that   there   are   separate   decrees against them individually” Vide ‘Umrao Singh v. Hafiz Muhammad Abdullah’, AIR 1935 Lab 949.\n<\/p>\n
In the present case, the subject-matter of the suit is a single claim for maintenance made against all the defendants. Neither the ex parte decree’ by itself, nor the subsequent compromise decree is capable of giving the plaintiff the full relief against the several defendants. Where in a single subject-matter there are two decrees, Lord Mersey observes in ‘Ashfaq Husain v. Gauri Sahai’, 33 All 264 that “the latter decree supplemented and completed the former”. The facts in the case before the Judicial Committee are substantially similar to the present case. A decree was passed on 25-8-1900 against several defendants. As against one defendant, however, the decree was ex parte and it was set aside only against her on 11-3-1902. Subsequently, a decree was passed on merits against this defendant on 15-8-1902. An application for execution was filed on 21- 12-1905 against ail the defendants. An objection was taken that as the original decree was passed on 25-8-1900, the application was barred by time. Their Lordships held that the two decrees were steps in granting the plaintiff the relief to which he was entitled. The latter decree supplemented and completed the former. If there are several decrees in a suit, without assigning exclusively the respective liability of the individuals, but the directions in the decrees differ in respect of some of the several defendants in the mode of execution, “it does not” as laid down in ‘Moti Lal Agarhari v. Champalal’, AIR 1929 All. 795 “affect the fact that all of them are jointly liable for the decretal amount”.\n<\/p>\n
Whether a decree passed in parts is joint or several has to be ascertained in the following way. If satisfaction of the decree by one of the several defendants discharges the liability as against all, the decree is necessarily a joint decree; if, on the other hand, by such satisfaction the liability of one or more only is discharged to the exclusion of others, whose liability remains, the decree should be construed as being several and distinct. In the present case, the liability is joint though the mode of satisfaction in the case of judgment-debtor 1 is limited to certain terms. The satisfaction of the decree by anyone of the several defendants to the ex parte decree discharges the liability of all; vice versa, the satisfaction of the compromise decrees by judgment-debtor 1 satisfies the ex parte decree against all others. We are, therefore, of opinion that it is a single and joint decree against the several defendants. This leads us to the consideration whether the execution proceedings in terms of the compromise decree keep alive the terms of the ex parte decree. Article 182 of the Limitation Act prescribes the time at which the period of limitation begins to run to be “the final order passed on an application made”, and the latter part of the second para of Explanation I to Article 182 states that
\n  “where   the decree has been passed jointly against more persons than one, the application if made against any one or more of them……shall take effect against them all.”\n<\/p>\n
Explanation  I  of   Article    182   regarding   the effect of joint and several decrees is in terms applicable   to   the    applications    mentioned   in Clause 5 of Article  182. The principle is that if the judgment-creditor  does  something  which  keeps alive a joint decree as against one of his judgment-debtors the decree is to be regarded as alive as against all the joint judgment-debtors, & if it is alive it is, of course, capable of execution: Vide ‘Abdul Khadir v. Ahammad Shaiwa Ravuthar’,   38   Mad  419   (FB)  at  p.   422.    In  cases which  are  referred  to in  Article  182 there  is an equity arising by the fact that the judgment-creditor has done something for the purpose of realising  the fruits   of   his   judgment.    In  the case of a joint decree against several persons an execution application against some of them saves limitation against  all  the  judgment-debtors,   Vide   ‘Ramasray   Chaudhury   v.  Lachmi Narayan’,   AIR   1927   Pat   416,   or   even   against the legal representatives of a judgment-debtor who   were  not  parties  to  such  an  application Vide   ‘Kotigadu  v.  Subbayya’,   AIR   1927   Mad 1103.    Again,  in ‘Kamal  Kishore  v.  Birjendar Narain’,  AIR  1942  Pat  285,  it  has  been  held (following ‘103 Ind Gas 887 : AIR 1927 Pat 416’) that in the case of a joint and several decree an application for execution made against any one of the Judgment-debtors is a step-in-aid of execution  against  all.    In  ‘Nand  Lal  Saran  v. Dharam Kirti Saran’, AIR  1926 All.  440 at p. 444, it is stated as follows:\n<\/p>\n
  “The principle appears to be that when A, B and C are jointly liable and the decree-holder is    attempting   to   recover   the  decretal amount from one of them, he should not be barred  from  recovering  it from  the  rest,  if he fails   to   recover   it   from   the   particular Judgment-debtor………in such a  case  it will be   equitable   to   direct  that steps   taken   in aid of execution against one of the judgment-debtors   should    save    limitation    as   against others.    It is also obvious that where a joint decree is passed the decree-holder cannot execute  it  at  one  and  the  same  time  against them  all separately for the  same  amount.”\n<\/p>\n
 In a recent decision of the Madras High Court reported in ‘Lakshminarasimham v. Suryanarayana’,  ILR  (1948)  Mad 624;  it has  been  held that  though   a  decree   includes   several   reliefs based upon distinct causes of action, it is nevertheless one decree within the meaning of Article  182 and it is open to the decree-holder in execution     executing     the     decree     in     respect  of same   reliefs   to rely   on  Clause  5  of Article    182    for   calculating    limitation    from the dates of the final orders on previous execution petitions  notwithstanding that those  petitions   related    to    other    and    different   reliefs granted  under  the   decree.    The  principle   deducible from the decided cases is that the criterion  to save,  limitation  is   that   the   decree should have been passed jointly irrespective of the fact that the reliefs granted under the decree are similar or otherwise.    We have, therefore, no hesitation in holding that in the present case the decree is joint and the previous execution application keeps the decree alive against all the defendants.\n<\/p>\n
6. Another contention by  way of ‘res  judicata’ was raised by the respondents.    It is based on  an  observation  in  the  judgment  in   ‘S. A. No. 437 of 1947-48’ of this Court to which one of us  is a party.      The particular passage to which our attention is drawn is as follows:\n<\/p>\n
  “As  already mentioned,  it has been  declared in the said second appeal ‘S. A.  No. 528 of 1944-45  that  the  terms  of the  rajjnama  decree   are   not  binding   on   defendant   4   and therefore the previous   execution   application could not possibly be taken as being a step-in-aid of execution of the ex parte decree.”\n<\/p>\n
The  latter  expression  “and  therefore………the ex parte decree” is not found in ‘S. A. No. 528 of 1944-45’ and if it should be construed as an inference raised in ‘S. A. No.  437 of 1947-48’, it  is  clearly  an  obiter for deciding the  latter case, the only question which arose for decision in that case being whether the compromise decree could be executed against defendant 4 who was no party to it. The following passage occurring  subsequent to  the  passage  quoted   above from ‘S. A. No. 437 of 1947-48’ makes the position clear which runs thus :\n<\/p>\n
  “The   question   whether  the   ex  parte   decree which   is   held   to  be   binding  on   defendant 4 is executable against defendant 4 cannot be gone into in this appeal and the respondent may   file   an   application   seeking   to   enforce the terms of the ex parte decree  which has to be disposed of on merits after hearing the objections  that may  be urged  by  defendant 4.”\n<\/p>\n
No bar of ‘res judicata’ can arise in any other sense as the previous applications were different and were for separate reliefs. This contention has no substance and cannot be accepted.\n<\/p>\n
7. In conclusion, we are unable to support the orders of both the lower Courts and the said orders are hereby set aside. The records are sent back to the trial Court with a direction that the execution application may be restored to file and disposed of on merits.\n<\/p>\n
8. The parties will bear their own costs in this Court.\n<\/p>\n
9. Order set aside.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court Rangamma vs Rangamma And Ors. on 8 November, 1951 Equivalent citations: AIR 1952 Kant 121, AIR 1952 Mys 121, ILR 1952 KAR 190, (1953) 31 MysLJ Author: Balakrishnayya Bench: Balakrishnayya, V Murthy JUDGMENT Balakrishnayya, J. 1. This is a decree-holder’s appeal. She filed Execution Case No. 26 of 48-49 for enforcement of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-43050","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nRangamma vs Rangamma And Ors. on 8 November, 1951 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rangamma-vs-rangamma-and-ors-on-8-november-1951\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rangamma vs Rangamma And Ors. on 8 November, 1951 - 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