This is an application under section 47 read with section 151 of the Civil Procedure Code by a judgment-debtor to stop the auction of immovable properties of another judgment, debtor who happens to be his brother. The facts material to this application are as follows : Both the decree- holders are brothers and they were carrying on business with the judgment-debtors. Thus the first decree-holder and the second judgment-debtor were partners of a firm known as the Book Corporation, whilst the first judgment-debtor and the second decree-holder were partners in another firm known as the Central Printing Press. There were disputes between the partners of these firms, which were referred to the arbitration of two arbitrators who were both Advocates of this Court. The said arbitrators gave their award which was filed in this Court and made the rule of this Court in Suit No, 91 of 1965. In the events that happened the decree-holders, who are brothers, became entitled to receive in cash a sum of Rs, 54,366.10 with costs and interest from the judgment-debtors, their former partners; and further, according to this award, the immovable properties of the second judgment-debtor were to be treated as security for the amount decreed by the award. In due course the decree-holders commenced execution proceedings, and the immovable properties of the second judgment-debtor as well as the assets of the Book Corporation (which had passed under the award to the judgment-debtors) were attached. In view of the fact that the award directed that the immovable properties of the second judgment-debtor should be treated as security for the payment of the decretal amount to the decree-holders, the judgment-debtors filed an execution application in this Court being Execution No, 64 of 1967 in which they contended that the decree-holders had first to sell the immovable properties of the second judgment-debtor before they could proceed to execute the decree against the assets of the Book Corporation and they also disputed the exact amount claimed against them. This application was heard and dismissed by my learned brother Ghulam Safdar, J. on 1st April 1968, therefore the judgment-debtors filed a Letters Patent Appeal which was admitted by a Division Bench of this Court, of which I was a member. The appeal was admitted only on the question of the correctness of the amount claimed by the decree-holders, and the appeal was disposed of on 10- 9-1968 by a Division Bench of which I was also a member. The respondent decree-, holders conceded before the Division Bench the correctness of the adjustments sought by the judgment- debtors in the decretal amount, so that the decretal amount was reduced by the sum of Rs, 7,900 with interest and costs. Further, in order to meet the objection of the appellant-judgment-debtors that their business was paralysed by the order attaching the Book Core poration, the respondent- decree-holders offered that they would first proceed to realize the decretal amount by the sale of the immovable properties in their favour, and by consent the order attaching the Book Corporation was to be vacated if the appellant-judgment-debtors furnished security in the sum of Rs, 30,000.
Then in pursuance of this order the decree-holders continued proceedings under Order XXI, C. P. C. for the sale of immovable properties of the second judgment-debtor. But before the properties could be sold the first judgment-debtor filed this application which has now come up for hearing before me.
2. According to Mr. Raza, learned counsel for the first judgment-debtor, the National Commercial Bank, now in liquidation, had filed a suit in this Court being Suit No, 85 of 1966 against the Central Printing Press and obtained a decree under which the Central Printing Press has to pay a sum of Rs, 95,000 (approximately). According to learned counsel the first judgment-debtor, and the second decree-holder are partners of the Central Printing Press, and as the claim of the National Commercial Bank will be recovered from him (the first judgment-debtor), he is entitled to recover half the said amount of Rs, 95,000 from the second decree-holder as his share of the liability for the decree in Suit No, 85 of 1966, therefore he is entitled to set off his claim in Suit No, 85 of 1966 against the liability of the other judgment-debtor in Suit No, 91 of 1965 (namely the award which had been decreed against him and his brother), and alternatively he argued that the properties of the other judgment-debtor should not be sold and should be retained as security for his claim against second decree-holder.
3. Mr. Iqbal Kazi opposed this application and submitted that the second decree-holder was not liable for any payment under the decree of this Court in Suit No, 85 of 1966. In this connection I have to observe that Suit No, 85 of 1966 was filed by the National Commercial Bank before it went into liquidation and it would appear that the first judgment-debtor had signed a guarantee for an advance given by the National Commercial Bank to the first two defendants in that suit, therefore the Central Printing Press had been impleaded as a defendant Mr. lqbal Kazi submitted that on a proper construction of the judgment of this Court in that suit the claim of the plaintiff had been decreed not against the Central Printing Press but against the first judgment-debtor only. He also submitted that in any event the guarantee had been executed by the first judgment-debtor after the dissolution of the firm known as the Central Printing Press, therefore his client (the second decree-holder in the proceedings before me) could not possibly be liable on the guarantee given by the first judgment-debtor to the National Commercial Bank. He also submitted that as the (?) any payment from the first judgment-debtor, the said judgment-debtor was not entitled to stop execution proceedings against him, much less to stop execution proceedings against another judgment-debtor merely because he was his brother.
4. Learned counsel for the first judgment-debtor, to whom I shall refer for convenience the applicant, argued vehemently that the second decree-holder was liable, in the events that had happened, for a sum of Rs, 47,500 (approx.) on account of his liability to the National Commercial Bank in Suit No, 85 of 1966 of this Court. This argument assumes that the Central Printing Press alone would be liable for the balance of the decretal amount in that Suit, although there were several other judgment-debtors. Learned counsel for the applicant was not able to explain why the burden of discharging the decretal amount would have to be borne only by the Cental Printing Press. He merely referred me to letters of judgment-debtors Nos, 2 and 3 in that suit in which one of these judgment-debtors has written that he had paid only Rs, 6,000 towards the decretal amount, whilst the other judgment-debtor has said that he had not paid anything. I am not impressed by this evidence and, in the absence of collusion between the applicant and the other judgment- debtors in that suit, there is no reason why the burden of discharging liability in that suit should fall upon the Central Printing Press alone. But assuming for the sake of argument that the second decree-holder will be liable as claimed by Mr. Raza, he was not able to satisfy me how the applicant was entitled to stop the sale of the second judgment-debtors' properties.
5. In the first place, although I gave time to the learned counsel for this purpose, he was unable to cite any provision of law or show me any judgment or authority in support of his submission that the sale of the second judgment-debtor's properties should be stopped on account of the applicant's claim against one of the decree-holders. In view of this difficulty he submitted that the properties of the second judgment-debtor should be retained as security for the claim which the applicant had by virtue of the fact that he would have to pay the balance of the decretal amount in Suit No, 85 of 1966. But it is settled law that the provisions of Order XXI, C. P. C. constitute a complete code for execution proceedings and he was not able to refer me to any provisions in Order XXI in support of his argument. Additionally, he has not even alleged that the second decree- holder had taken any steps to transfer his property so as to defeat the claims of any of his creditors. In these circumstances the argument of learned counsel that the second judgment- debtor's immovable properties should be retained as security is not based on reason or equity or any provision of law and is without merit.
Further, as I have already observed, the decree-holders had attached both the immovable properties of the second judgment-debtor and the assets of the Book Corporation, and the applicant and the second judgment-debtor had objected to the attachment of the assets of the Book Corporation and advanced the plea that the decree-holders should first proceed against the second judgment-debtor's immovable properties in order to enable them to carry on the business of the Book Corporation. Although that, plea was rejected, as I have pointed out, Mr. Iqbal Kazi had given an undertaking on behalf of the decree-holders before the Division Bench in L. P. A. N. 90 of 1968 that they would first sell the immovable properties of the second judgment- v. qui debtor and take execution proceedings against the assets of the Book Corporation only if the sale proceeds of the second judgment-debtor's immovable properties were not sufficient to cover the decretal amount. Having thus induced the decree- holders to drop further proceedings against the Book Corporation, the applicant now seeks to stop the sale of the other judgment-debtor's immovable properties, and that on an objection of which he was aware when the decree-holders had been persuaded to alter their position to oblige him and the other judgment-debtor. In the circumstances not only can the applicant not bring his case under section 151, C. P. C. as he seeks to do, but he is estopped from challenging the sale of the other judgment-debtor's immovable properties and on this ground also the application is not fit to be entertained.
7. Finally, Mr. Iqbal Kazi submitted that the National Commercial Bank was in liquidation and even if it was assumed for the sake of argument that the Central Printing Press was liable, as contended by Mr. Raza, it would take a long time before the liquidator of the said Bank would enforce the claim against the Central Printing Press. I have to observe here that Mr. Raza was not aware of the steps, if any, taken by the liquidator to realise the balance of the decretal amount in Suit No, 85 of 1966.
Assuming therefore that the applicant will be liable under the decree in the suit, it may be months or years before that liability is enforced against him. In these circumstances, Mr. Iqbal Kazi argued that the applicant's claim was barred under section 43 of the Contract Act, 1872. Section 43 reads as follows:-- "43. When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise.
Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.
If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.
Explanation.--Nothing in this section shall prevent a surety from recovering from his principal payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal."
Mr. Iqbal Kazi argued that, at the highest, the applicant's right was that of a joint promisor, therefore in view of this section, he could enforce his claim against the second decree-holder only after he had paid the decretal amount in the suit filed by the National Commercial Bank in Suit No, 85 of 1966.
The argument of learned counsel is supported by Illustration (d) of section 43 which reads as follows:--
(d) A, B and C under a joint promise to pay D. 3,000 rupees, A and B being only sureties for C. C fails to pay. A and B are compelled to pay the whole sum. They are entitled to recover it from C.
Further, in Mulla's Commentary on the Contract Act, 8th Edition, page 315, the learned author states as follows:-- "When liability to contribute arises.--In a case decided before the enactment of the Contract Act, it was held that the mere existence of a decree against or of several joint debtors does not afford ground for a suit for contributing against the other debtors. 'Until he has discharged that which be says ought to be treated as a common burden, or at any rate done something towards the discharge of it, he cannot say that there is anything of which he has relieved his co-debtors, and which he can call upon them to share with him.' And the law under the Contract Act would appear to be the same; See illustrations to the section."
I may also observe here that learned counsel's argument receives some support from a judgment of a Division Bench of the Madras High Court in Ibrahim v. Raphiel . The facts of that case were that the plaintiff and the defendant had each borrowed money from a stranger and executed a joint promissory note for the total amount. As the amount due under the promissory note was not paid the promise sued both the plaintiff and the defendant and obtained a decree for the balance of the decretal amount only against the plaintiff, the defendant being exonerated on the plea of limitation. After paying the decretal amount, the plaintiff sued the defendant for a contribution and in allowing his claim for a contribution the learned Judges of the Madras High Court held that the plaintiff's claim for contribution arose and could arise only when he had paid the decretal amount.
8. I have found another judgment of the Madras High Court in Kotigari Rangiah Chetti v.
Chintalapalli Narasayya and another which is also of some assistance to the question under consideration. The facts of that case were that the appellant had obtained a money decree against two judgment-debtors for a very petty amount, but the judgment-debtors had been awarded costs and the aggregate amount of the costs exceeded the decretal amount due to the plaintiff. The decree-holder applied for execution against one of the judgment-debtors who claimed the right to set off against the decretal amount not only the costs due to him but the costs due to the other judgment-debtor. His defence was rejected on the ground that the other1 2 judgment-debtor had not filed an execution application for his claim for costs, therefore the amount due to him could not be set off against the amount due to the appellant under his decree.
It is true that the judgment turned on the provisions of Order XXI, rule 19, C. P. C. This rule deals with adjustments in eXecution proceedings, and under it a judgment can set of against the decretal amount due from him the amount due to him by the decree holder under, a decree in another suit, only if he has filed an execution application in the other suit for the enforcement of his decree against the decree-holder. The provisions of this rule are not directly applicable to the peculiar situation before me. But for instance, the applicant had paid the decretal amount in Suit No, 85 of 1966 and obtained a decree against the second decree-holder for contribution in respect of his payment to the decree-holder in Suit No, 85 of 1966 then his rights would have been directly governed by the provisions of this rule. Merely because this rule is not applicable to the instant case and there is no express provision governing the applicant's claim, it cannot possibly be argued that his rights are higher than they would have been if he had obtained a decree against the second decree-holder, therefore to allow the applicant to invoke the provisions of section 151, C.
P. C. in support of his claim, as Mr. Raza seeks to do, would be to defeat and not to further the ends of justice.
9. No other argument was advanced. The application is without merit and is dismissed with costs. I L R 39 Mad. 288 AIR 1917 Mad. 226