There were instituted three suits against - one Muhammad Sharif alongwith others, the particulars of which are as follows :-
(a) Civil Suit No. 57 of 1965 filed by S. R. Rehmatullah & Sons v. (i) Messrs Muhammad Sharif Fazal, Karim through Muhammad Sharif Partner; (ii) Muhammad Sharif; (iii) Fazal Karim; (iv) Meraj Din and (v) Muhammad Sadiq. This suit, it is a common ground, was for partnership-debts of the firm shown as defendant No. 1 and Muhammad Sharif therein was sued in his capacity as a partner.
This suit was decreed on 30-11-1966 against defendants Nos. 1 to 3 and was dismissed against defendants Nos.4 and 5. The decree passed was for Rs. 7,06 L.C0 and liability of the defendant was made joint and several. This suit will hereinbefore be referred to as the first suit.
(b) Suit No. 58 of 1965 filed by the same creditor Messrs S. R. Rehmatullah Proprietor S. R.
Rehmatullah & Sons against (i) Messrs Muhammad Sharif Fazal Karim; (ii) Muhammad Sharif and
(iii) Fazal Karim. It is a common ground, again, that this suit was also for partnership debts of the firm shown as defendant No. 1 and Muhammad Sharif was sued as a partner thereof. It was also decreed on 30-11-1966 against all the defendants for Rs. 21,868.35 and the liability herein was also held to be joint and several. This suit will hereinafter be referred to as the second suit.
(c) Suit No. 74 of 1966 filed by National Bank of Pakistan against (i) Messrs Muhammad Bashir, Mushtaq Muhammad; (ii) Muhammad Bashir ; (iii) Muhammad Mushtaq and (iv) Muhammad Sharif who was (it is a common-ground before me) sought to be made liable as a surety for the debts of the firm shown as defendant No. 1 and also in his capacity as an indorser of a demand promissory-note involved in the case. This suit was decreed on 5-7-1966, against all the defendants for Rs. 21,042.1. Though the decree does not say so, but in the relevant judgment, the liability of the defendants was held to her joint and several. This suit shall hereinafter be called as the third suit.
2. The decree-holder in the first and second suit filed execu--petition applications bearing Nos. 313 and 314 of 1966 respectively, in which be got a private property of Muhammad Sharif sold. The sale proceeds of that property stand deposited in Court to the extent of Rs. 38,000.00. National Bank of Pakistan who was a creditor/decree-holder in the third suit hereinbefore mentioned, filed an application under section 73 of the Civil Procedure Code (hereinafter called the Code), for claiming a rateable distribution of the said sale proceeds. This application was dismissed by the learned Executing Court on 15-3-1969 on the ground that Muhammad Sharif (whose private property had been sold) could not be said to be the same judgment-debtor within the meaning of the aforesaid section in all the three decrees and, therefore, no rateable distribution could be made to the National Bank. The National Bank has come up in revision against the aforesaid order of the learned Executing Court.
3. Before proceeding further it is essential to highlight the position of Muhammad Sharif (the judgment-debtor) in a comparative form in the aforesaid three decrees. It is as follows
(i) The firms sued in the first two suits (on the one hand) and in the third suit (on the other hand), were quite different. In the. First two suits, the firm sued was Messrs Muhammad Sharif Fazal Karim while in the third suit the firm was Messrs Muhammad Bashir Muhammad Mushtaq;
(ii) in one firm, namely, Messrs Muhammad Sharif Fazal Karim he was a partner while in the other firm, namely, Messrs Muhammad Bashir Muhammad Mushtaq, involved in the third suit, he was not a partner;
(iii) in the first two suits, his liability was as a partner for the debts of the firm known as Messrs Muhammad Sharif Fazal Karim while in the third suit this liability was not as a partner of any firm but as a surety for the debts of the firm known as Messrs Muhammad Basrir Muhammad Mushtaq;
(iv) and also as an indorser of a demand promissory-note involved therein;
(v) in the first two cases, the decrees specifically stat.-d that the liability was joint and several while in the third decree it was not so written, though in the relevant judgment no doubt it was so indicated.
From what has been written above it is obvious that the decree in the third suit is not against Muhammad Sharif in the same character; capacity or in the same interest in which first two decrees were passed against him and consequently he cannot be held to be the "same judgment- debtor" within the meaning of this phrase as used in section 73 of the Code. My reasons for coming to this conclusion are as follows :- "(a) Section 73 of the Code reads as follows :- 73.-(1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made applica--petition 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 assets, after deducting the costs, of realization, shall be rateably distributed among all such persons. Provided as follows:-
(a) Where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale ;
(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold ;
(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied:- First, in defraying the expenses of the sale secondly, in discharging the amount due under the decree ;thirdly, in discharging the interest and principal monies due on subsequent incumbrances (if any); and fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof."
(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such parson to compel him to refund the assets.
(3) Nothing in this section affects any right of the Govern--ment."
A perusal of this section will show that it applies when more than one person apply to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor.
The judgment-debtor in all the decrees must be the same. The sameness is not confined merely to the identity of the name or of the indi--vidual but there must also be sameness of the interest, character, or capacity which the judgment-debtor must occupy in common in all the decrees. The individual may be the same, but if he has different interests; character or capacities, in different decrees under consideration, then he cannot be called the same judgment---debtor in all the said decrees. A person who is sued as a partner in a firm or against whom a decree has been passed as a partner of a firm, is not the same judgment-debtor when another decree is passed against him in his individual capacity. See T. G. Sundaralyer v. K. N. Balusami lyer and another (AIR 1956 Mad. 192), Balmer Lawrie & Co. v. Jadu Nath Banerjee (AIR 1915 Cal. 658:), Pacific Bank Ltd. v. Thakur Singh Kalsi (AIR 1949 Cal. 396), Girdhari Lal v. Muni Lal and others (AIR 1963 Ph. 43), Mst. Inderbasi Kuer v. Satnarain Singh and others (AIR 1923 Pat. 521) and Sadhu Ram v. Firm Dhanpat R.I Telu Ram (AIR 1937 Lah. 937).
(b) The word "judgment-debtor" is defined in section 2 (10)--of the Code so as to mean, "any person against whom a decree has been passed or an order capable of execution has been made". This will show that judgment-debtors may be of two kinds, namely, (i) those against whom a decree has been passed and (ii) those against whom an order capable of execution has been made. (For a distinction between a "decree" and an "order", reference may be made to the definitions of these words as contained in section 2(2) and section 2 (14) of' the Code. In section 73 of the Code, it is only a former kind of judgment-debtor who has been referred to, namely, he-- against whom a decree has been passed. Now there is an obvious difference between :-
(a) a person against whom a decree has been passed, namely, a judgment-debtor stricto senso: and
(b) a person against whom a decree may be executable--(e.g., see section 146 of the Code and Sm. Hemlata Dasi v. Bengal Coal Company Limited AIR 1935 Cal. 738 which says that section 146 cannot enlarge the scope of section 73, as it is expressly made subject to the other pro--visions of the Code).
A person against whom a decree has been passed will always be a person against whom execution can also proceed, but a person against whom execution may proceed need not always be a judgment-debtor. As for example, a decree may be executed against a purchaser pendenle lite or a person who might have stood surety after a decree is passed in order to obtain a stay order by the judgment-debtor. The mere fact, therefore, that in certain categories a decree can be executed against a person will not make him a judgment-debtor if the decree was not passed against him. 'The natural corollary of this is, that when a decree is passed against a person in his capacity as a partner of a firm, then he is a judgment-debtor in that decree, in that and that respect alone. In other words, it is the incidence of passing a decree, by which a person should become a judgment-debtor and not the mere fact of the executability of the decree against him.
This point gets support from the word "passed" used both in the definition of the "judgment-debtor" as well as in sub--section (1) of section 73 of the Code. If the incidence of the decree having been "passed" is ignored then it will tantamount to not giving effect to the said word which, it is obvious, cannot be done. Certain case-law was brought to my notice in which it teas held that the word "passed", as used in section 73 of the Code and which was added in section 295 of the Code of 1882 was it did not exist in the corresponding section of the earlier Code of 1877) was not of much significance. With great respect, I do not subscribe to that view. The aspect of the matter, which has hereinbefore been discussed by me was not discussed in any of the said rulings and probably that may be the reason for not fully appreciating the meaning and significance of this word.
(c) The word "decree" is defined in section 2(2) of the Code, and so far as relevant for the purposes of the present discussion, means, "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit". This will show that a decree is always against a party to the suit. In order to hold that a person is a same judgment-debtor (for example), in two decrees, it must be shown that he was the "same party" in the two suits. The word "same party" or "same parties" is not unknown to the students of law inasmuch as it is used in section 11 of the C. P. C. As well where it is laid down as to when can a suit be res judicata between the same parties. A party is a person whose name appears on the record at the time of the decision. A person suing or sued as a partner is not the same party when he sues or is sued in his personal, private or individual capacity.
(d) In section 49 of the Partnership Act, it is written as follows :- ---Where there are joint debts from the firm and also separate debts due from any partner, the property of the firm shall be applied in the first instance in payment of the debts of the firm, and, if there is any surplus then the share of each partner shall be applied in payment of his separate debts or paid to him. The separate property of any partner shall be applied first in the payment of his separate debts, and the surplus (if any) in the payment of the debts of the firm.--- This shows that a partnership property in the hands of a partner cannot be straightway followed by a separate creditor-decree---holder, who has obtained a decree against a partner of a firm in his individual or private capacity. If he cannot follow that property as of right and in all contingencies, the question of his sharing in any rateable distribution with a partnership creditor/decree-holder does not arise. This goes to show that a judgment---debtor, against whom a decree has been passed in his private and individual capacity is not the same judgment-debtor when a decree is against him in his capacity as a partner of a firm. Same is the effect of the provisions of Order XXI, rule 49 of the Code, where too such a recourse is prohibited, though some concession is laid down in sub-rule (2) which allows that in certain cases the interest of the partner in partnership property and profits may be charged with payment of the amount due under the decree and a Receiver may be appointed to receive the share of such a partner . . . . . And follow that interest.
(e) Again a difference should be maintained between (f) the concept of a person in which he is a judgment-debtor and (ii) the kinds of his properties which can be followed by a creditor--decree- holder. The fact that the law gives rights to a creditor/ decree-holder to pursue properties which do not belong to the judgment-debtor in the same capacity in which he was sued in the suit, would not always convert the status of the judgment---debtor from the one which he occupied in the suit to the one in which any property in a given case was held by him or was being followed in execution. It is the status at the time of the passing of the decree which is to determine whether he is a same judgment-debtor in various decrees or not and not always the status or capacity in which execution is allowed against him or against properties in his hands at various times and stages. Concessions in or privileges of execution, in other words, are not the controlling factors to determine the sameness of a judg--ment-debtor which should be seen from the title; capacity; character or interest in the suit and suit alone in which the decree was passed and which determined the rights of the parties.
(f) In the instant case, decree in the third suit is against Muhammad Sharif in his capacity as a surety (for the other defendant or defendants) and also as an indorser of a promissory--note. In Khagendra Nath Mitra v. P. C. R.I (AIR 1940 Nag. 79), which followed Sakharam Lahanuji Mali and another v. Mahadeo Venkat and others (AIR 1940 Nag. 79) it was held that where there is a decree in favour of A against C and another decree in favour of B against C and in the first decree D stood surety, then D cannot be considered to be the same judgment-debtor for rateable distribution under section 73 of the Code.
4. In reply to all what has been written above, Sh. Mahboob Elahi, learned counsel for the petitioner- Bank argued that in later part of section 49 of the Partnership Act it is written that, "the separate property of any partner shall be applied first in the payment of his separate debts and the surplus (if any) in the payment of the debts of the firm", which he submitted, showed that a partnership creditor/decree-holder could also proceed against the separate property of the partner judgment-debtor, which fact was enough for holding that he too could participate in a rateable distribution as contemplated in section 73 of the Code. I do not agree. A strict perusal of the provisions of section 49 of the Partnership Act, reproduced above, would show that a rateable distribution in such a case is rather expressly prohibited and it is specifically laid down that the private assets of a partner are first to be applied to his private debts and then to his partnership debts. The provision aforesaid rather goes against the petitioner instead of supporting him. When confronted with this situation, learned counsel for the petitioner argued that the provisions of section 49 are special provisions occurring in Chapter VI of the Partnership Act, which deals with dissolution of a firm and its incidents and consequences, and as such no general deductions from it should be made. If this is so, then the point which was raised by the learned counsel in the opening of this paragraph goes away. Be that as it may, I am, however, of the opinion that the provisions of section 49 of the Partnership Act, do not permit rateable distribution in cases of the present kind. What is prohibited by section 49 of the Partnership Act, it is obvious, cannot be achieved by interpreting section 73 of the Code, in a manner in which the learned counsel wishes me to interpret it. No doubt, the said section occurs in Chapter VI of the Partnership Act dealing with the dissolution of a firm and its incidents but then again, what cannot be done after dissolution should not be allowed to be done even during the continuation of the partnership. In the instant case, this argument need not be carried further, because it has not been argued before me that the partnership/the firm of which Muhammad Sharif was a partner is still functioning or continuing.
5. Learned counsel for the petitioner referred to Karitanta Kumar Guha v. Pullin Krishna (AIR 1938 Cal. 316) for the contrary view. This ruling is of no assistance; because it did not take into considera--petition the provisions of section 49 of the Partnership Act or Order XXI, rule 49 of the Code and the various other aspects hereinbefore mentioned by me. Even otherwise, the same Court dissented from it in Pacific Bank Ltd. v. Thakur Singh Kalsi and reverted to the old view contained in Balmer Lawrie & Co. v. Jadu Nath Banerjee.
6. The next ruling referred to by Sh. Mahboob Elahi was Pannaji Devichand v. Lakkaji Dolaji Firm (AIR 1943 Bom. 156). This ruling differed from Sadhu Ram v. Firm Dhanpat R.I Telu Ram for the following reasons :-
(a) that section 49 of the Partnership Act applies after dissolution of a firm and not when a decree was obtained against a going concern ;
(b) section 49 ibid no doubt applies to different debts, namely, (i) debts of a firm and (ii) debts of a partner. It was observed that this distinction was lost after a decree, the effect of which was to make all debts as "decretal debts"; and
(c) that there was nothing in Order XXI, rule 50 of the Code to show that an execution could not be taken unless the partnership property was exhausted.
These points were noticed in Pacific Bank Ltd. v. Thakur Singh Kalsi and Girdhari Lal v. Muni Lal and others and were held to be the result of laying too much emphasis on the individuality and name of the judgment-debtor, rather than on his character; capacity and interest. Point (a) has already been dealt with by me in the discussion hereinbefore made. Point (b) to say with respect is misleading. The theory of merger of debts into a decree is totally out of a place. All debts merge into a decree, but in spite of that it is the character, capacity and interest of the judgment--- debtor which is not to be lost sight of; because if emphasis was merely on a judgment-debtor then the word "same" could not have been used in section 73 of the Code. As regards the point at (c), it is nobody's case that execution in no case can proceed against the private property of a partner. It may proceed all right both in that case and also in a converse case, but then that can be only in accordance with the principles contained in Order XXI, rule 49/50 of the Code read with section 49 of the Partnership Act which lay down different rules and do not permit rateable distribution by bringing into hotch poch both the partnership and private properties of a partner. This is further so because section 4 of the Code lays down that it shall not affect any law contrary to that contained in the Code itself. Another thing to be noticed with regard to AIR 1943 Bom. 156 is that it was influenced by the reasonings contained in Administrator-General of Bombay v. Haji Sultanalli Sushtary & Company (AIR 192,7 Bom. 255) which was a case under Order XXI, rule 18 of the Code of Civil Pro--cedure, the wording and object of which is quite different and since that Rule is not the subject-matter of adjudication before me, I reserve my comments about the same at the moment and leave it for examination in some appropriate case. The not result of the discussion hereinbefore made is, that I am in respectful agreement with those rulings which did not follow Kritanta Kumar Guha v. Pullin Krishna and others and Punnaji Devichand, Firm v Lakkaji Dolaji Firm (AIR 1943. Bom. 156).
7. This exhausts the list of case-law cited before me about a partner. It will be seen that preponderance of view is towards the same line which I have adopted in the instant case. However, learned counsel cited rulings in general, to propound certain abstract principles for interpreting section 73 of the Code. These were Vayi Ramakrishnan Chettiar and others v. Kasi Viswanathan Chettiar (AIR 1936 Mad. 40), Dundappa Virupaxappa Kallolgi and others v. Annaji Vardaji and others (AIR 1953 Bom. 65) and Bamzan Khan v. Seth Hiralal and others (AIR 1961 Raj. 118). These rulings were not about a partner and, therefore, need not be attended to in detail. Anyhow, one principle, which the learned counsel wanted to deduce from these rulings, in general, was that for the purpose of section 73 of the Code, it was always the identity of the property attached which was more important than the identity and commonness of the judgment-debtor. This is against the wording of section 73 of the Code, where it is the status and identity of the judgment--debtor which is to be determined with reference to the passing of the decree and not always the nature or identity of the property which may be available for execution against him. This theory of identity of the attached property has no relevancy and was dissented from in some of the rulings quoted by me in sub-para. (a) of paragraph No. 3 of this judgment. Which property can be attached in execution against a judgment-debtor is a separate question by itself and should not be mixed up with the point as to whether a judgment-debtor is a common judgment-debtor in more than one decree or not. Before a decree can be executed, no doubt, questions do rise as to whether (i) it car be executed against the person against whom it is sought to be executed; (ii) whether it can be executed against the property sought to be proceeded against and (iii) whether there is no intrinsic and inherent vice or hurdle in the way of the decree-holder in all these respects. It is after these stages are crossed that the stage for actual execution arises and it is at that stage when two creditors come into the field, that a question about the commonness of the judgment-debtor comes into the forefront. If a case is held up in any one of the three phases, hereinbefore mentioned, it does not become ripe for application of section 73 of the Code. For crossing the aforesaid three phases, therefore, the nature and character of a property may have some relevancy but not for the determination of the commonness of the judgment-debtor.
The last case referred to by the learned counsel for the petitioner was Lala Shiv Charan Das and others v. Lala Ran Saran Das (1). The facts of that case are clear from the headnote (a) of the report which is to the following effect :- ---(a) Civil P. C. (1908), S. 73-Same judgment-debtor-A owing separate debts to X and Y- X obtaining decree against A and after A's death trying to execute decree against property of A in.
Hands of his legal representatives--- Y obtaining decree after "A's death against A's legal representatives recoverable from A's estate-Decrees are against same judgment-debtor within S. 73 so as to claim rateable distribution.--- "The cases in which the question has come up for considera--petition divide themselves into three different classes: (1) where one decree was passed against X, Y and Z jointly and the other decree against X and Y only, or against X alone; (ii) where the first decree was passed against X in his lifetime and after his death is being executed against his legal representative Y to the extent of X's estate in his hands, and the second decree is passed, after X's death against his legal representative Y, in respect of a debt incurred by X, and is expressly made payable (1) AIR 1943 Lab. 148 out of X's estate in Y's hands; (ill) where the first decree is against X for a personal debt and the second decree is against Yin a different capacity, e.g., (i) as legal representative of X, or (ii) as executor for X, or (iii) as trustee for property held in trust for Yin which X has no beneficial interest."
The case before the Full Bench was of the kind of class (ii) indicated in the passage reproduced above. Since the case before me does not belong to that class, therefore, the discussion contained in that judgment about the same need not be attended to. However, in dealing with cases of the kind of class (iii) mentioned in the above passage, the learned Judge on page 153, wrote as follows :- "In cases falling in class (iii) also, the strict literal view has been departed from. As an instance, reference may be made to 27 C L J 100, where it was held that the test laid down in the section is the capacity in which the decrees were obtained against the defendants and the estate that could be proceeded against in execution of those decrees. In that case a person had died devising his estate by will of which he had appointed A, B and C as executors. A creditor of the deceased had obtained a decree for a debt due by the testator against two of the executors, A and B, and payable out of the estate of the deceased. Another creditor had obtained a decree against B and C, as executors of the estate of the deceased for recovery of a debt, also due by the testator. It was held by Mookerjee and Beachcroft, JJ. That as each decree prima facie was capable of execution against the estate of the deceased testator, the two decrees may, without unduly straining the language of S. 73, be regarded as passed against the same judgment---debtor, namely, they are both decrees against the estate of the testator, in one case represented by A and B and in the other case by B and C."
The learned Judges observed that 'a narrow construction ought not to be put on the terms of S. 73 so as to defeat the ends of justice.' Again in 24 1 C 476 and 26 All. 28, where there was a decree against a judgment-debtor personally and another against him as heir, the latter realizable from the estate of the deceased, it was held that the decrees were 'not against the same judgment- debtor' and the former decree-holder was not entitled to rateable share in the proceeds of the property of the deceased. These cases were converse of the one before us. But if the literal construction is to be put and the sole guide is the identity of the names of the judgment---debtors as they appear in the decrees, the decision ought to have been otherwise. It was, however, ruled that 'S. 73 cannot be invoked unless the judgment-debtor occupies the same character in each decree.' It is not necessary to cite any more cases falling in class (iii) for Mr. Mehr Chand Mahajan conceded that in such cases though the judgment-debtor in the two decrees is by name the same individual the decrees had been passed in two different capacities and are realizable from pro.
Parties of different persons and, therefore, S.73 cannot apply. But if a liberal interpretation is to be put on the expression the same judgment-debtor' in such cases there is, as aptly observed by Iqbal Ahmad, J. In I L R 1941 All. 77 at p. 95, 'no justifica--petition to give a go-by to such an interpretation' in cases falling in class (ii). The anomaly of adhering to the literal interpretation in cases falling under class (ii) is brought out prominently in one of the illustrations given by Iqbal Ahmad, J. A owed debts to X and Y. A died leaving a son B and a grandson C. After A's death X sued B for the debt due to him and obtained a decree against B, realizable out of the assets of A in his hands. After the decree, B also died and Y sued C (grandson of A and son of e), for the debt due by A to him and a decree was passed against C to the extent of the assets of A in his hands. If we merely look at the names in the decrees, the decrees are not against the same person. Will S. 73 bar the two decree-holders from sharing the proceeds of the property belonging to A ? Counsel for the appellant conceded that he could not support this position, and yet if the eo nomine construction is to be adopted, it must lead to this absurd result. It is clear from the above discussion that the words `the same judgment-debtor' are by no means so plain 'and unambiguous as they have been supposed to be in some cases and, therefore, it is permissible to interpret them with due regard to the governing intention of the section."
9. Thereafter the learned Judge after laying down certain canons of interpretation held that the judgment-debtor in the case involved before him was the same. Applying the above principles to the facts of the present case, learned counsel wanted to argue that here also the words "same judgment-debtor", should be liberally construed and if that is done then Muhammad Sharif, even though the decree has been passed against him in two different capacities, will be "same judgment-debtor" as contemp--lated in section 73 of the Code. In my opinion, the passages quoted from the judgment of Tek Chand, J., instead of helping the learned counsel go against him.
The learned Judge duly maintained the distinction between character; capacity and interest in which a decree may have been passed against a judgment-debtor. In the instant case, the decrees were passed against Muhammad Sharif in his different capacity; character and interest and about different types of debts. Applying the principles even on general plan, Muhammad Sharif cannot be called to be the same judgment-debtor.
10. The upshot of the above discussion is that this revision has no merits and is dismissed with costs.