In the previous part of the blog I discussed about the composite decrees, objections raised during their execution and how to decide them. In this second part of the blog I would be discussing about Joint Decree and some practical problems related to its execution.
In the previous part of the blog I framed two issues. The first issue was answered in previous part. For the sake of convenience I am reproducing the Second Issue here:
In cases of Joint Decrees where the liability of all the Judgement Debtors is joint and several, can the decree holder compel anyone or few of them out of all the judgment debtors to satisfy the entire decreed amount? And in case anyone or few of them is compelled to satisfy all of the decreed amount then what is the right and corresponding remedy available to such a person?
Practically when an application for execution of money decree is filed against multiple judgment debtors, the first step which court takes after payment of process fee by Decree Holder that it issues Notice to all JD’s under Order 21 Rule 22[i]. If the notice returns with a receipt that it was duly served then the JD’s need to appear before the court for further proceeding in execution application. But sometimes what happens that due to change in address of JD’s over a long period of time it becomes impossible to serve notice at their old address. In that scenario a Notice in Local Newspaper having wide coverage needs to be published by decree holder. Once these steps are taken the service of notice is deemed sufficient and either all the JD’s appear before court or still some of them doesn’t appear. Now the problem that arises is whether an execution can be started against an individual JD or few JD out of multiple JD’s who are absent and not present in the court. The argument that is raised by the present JD’s is that, the court cant execute a joint decree against them since it needs to be executed against all and court needs to wait until other JD’s appear. So for example the decree is a Joint money decree for an amount. Can this whole amount be recovered from a single JD?
To answer this we need to consider some provisions of Indian Contract Act. Section 43 of ICA[ii] reads as:
“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.”
Section 44 of ICA[iii] reads as:
“Where two or more persons have made a joint promise, a release of one of such promisors by the promisee does not discharge the other joint promisor or joint promisors, neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors.”
Applying these sections to the issue at hand, it is clear that it is open to the decree-holder to proceed in execution against any of the judgment-debtors and execute the entire decree from him, if the decree was passed jointly and severally against all the judgment-debtors. The decree-holders are perfectly within their rights if they execute their decree for the balance of the decretal amount against the single JD only. The position of the judgment-debtors as against the decree-holders is that of a promisor as against a promisee.
Remedy with the JD who was Compelled to Pay
When the decree was so satisfied by the plaintiff (One of the Judgement Debtor) alone a right arose in him to compel the other judgment-debtors to contribute equally with himself to the performance of the decree (unless of course a contrary intention appears of Which there is no satisfactory proof in this case as already held above.) In other words, the law permits the plaintiff in such a case to file a suit for contribution against those who were, like him, liable to satisfy the decree. And this must be the position in law even if the promisee or the decree-holder has released one or more of the judgment-debtors because the persons so released are not freed from their responsibility towards the remaining joint promisors.[iv]
The underlying reason is that there are really two kinds of liabilities which must be kept distinct from each other. The first is a liability between the decree-holder and the judgment-debtors (whose liability is joint and several). The second is a collateral liability between the judgment-debtors themselves. These two liabilities are essentially independent of each other and the mere circumstance that the decree-holder has absolved some of the judgment-debtors’ from the performance of the promise or that the liability of some of them towards the decree-holder is barred by time or is otherwise unenforceable cannot have the effect of affecting their liability between themselves on the principle of contribution which is recognised in Section 42 to 44 of the Contract Act. This liability to contribute equally on the part of the co-promisors towards the performance of a joint and several promise appears to be primarily based upon an implied contract between the judgment-debtors themselves and although it is subject to contract to the contrary between the co-promisors themselves, the promisee cannot by his unilateral act do anything to destroy it.
Right to Compel Contribution
Let us examine the position in the light of a few decided cases. The first case to which reference may be made is Abraham vs Raphial[v]. In this case there were two Joint promisors. The claim against one of them had become barred by limitation and was, therefore, dismissed and the other was made to pay the entire decretal amount. The latter then sued for contribution. The contention was raised that as the debt was held unrecoverable from the defendant directly, it would be entirely unjust that it should fall to be recovered from him indirectly, in consequence of some conduct of the plaintiff which the defendant did not authorise. This contention was repelled and the right to contribute was given effect to. It was held that the duty to contribute was clearly distinct from the duty to pay to the promisee, and that the first duty was to the promisor and the second to the promisee and the right of each joint promisor to claim indemnity did not consist merely of being subrogated to the right of the original promisee for though the promisee’s rights may have been released, the responsibility of the Joint promisor was not annulled, and that the right of each joint promisor to compel every other joint promisor to contribute equally with himself to the performance of the promise was unaffected by the mode in which the promisee exercised or failed to exercise his rights. It was further held that an express release by the promisee could not have the effect of affecting the collateral liability between the Joint promisors themselves.
In Jankibai v. Rama Manaji[vi], a joint decree was passed against A, B and C in favour of the decree-holders. B & C applied to the debt relief court for scaling down their debts joining A as non-applicant. The decree-holders failed to comply with a certain direction and consequently their decretal debt as against B and C was discharged. Thereafter the decree-holders realised the entire decretal amount from A. A then filed a suit against B and C for contribution. It was held that he was entitled to call upon B and C to contribute to the performance of the promise unaffected by the discharge in the Debt Relief Court. It was contended in this case that as the liability of B and C had been discharged as a result of the proceedings in the Debt Relief Court, they were not liable to contribute anything to A even though he was required to satisfy the entire decretal amount. This contention was negatived, and it was held that the discharge operated merely between the decree-holders and the defendants who were discharged and that thereafter the decree-holders were disentitled to execute their decree against them. But this discharge could not affect the claim of A for contribution which arose in his favour on his satisfying the decree long after the relief proceedings, because the liability of the defendants between themselves was different from the joint and several liability of each of them to the creditor and that this liability which was latent until A satisfied the decretal amount and it became patent and was enforceable against the other decree-holders who were in the position of joint promisors and that it was in no way affected by the discharge obtained by a joint promisor from the creditor either by an agreement or under the Relief Act.
The same principle was upheld in Narendra Chandra v. Pashupati Nath[vii]. This was a suit for contribution between the plaintiff and the defendants who were co-sharer Patnidars under A. The executors of A on his death brought a suit for recovery of rent against the plaintiff and the defendants. This suit was decreed and the decree was executed against the plaintiff alone. Thereupon the plaintiff instituted a suit for contribution against all the defendants according to their shares in the patni. This suit was decreed against all the defendants except two on the ground that the decree was unexecutable against them and, therefore, they were not liable to contribute. On appeal it was held, relying on sections 42 to 44 of the Contract Act, that these two defendants were liable to contribute also.
The decision in Kunju Naina vs Eapen Chacko[viii] laid down that in order to attract the obligation of a co-promisor to contribute towards a joint debt, all that is necessary is that the debt should have been discharged by a co-promisor when the debt was alive against him and that it was not necessary that the liability of the co-promisor against whom contribution is claimed was a subsisting one when the promises was paid, the true test being whether the liability was subsisting against the co-promisor who claims the contribution when he paid it.
Conclusion
The result of these authorities clearly is that where a number of persons are jointly and severally liable to satisfy a decree, then it is open to the decree-holder (who is in the position of a promisee) to compel any one or more of the Judgment-debtors (who are in the position of joint promisors) to satisfy the whole of the decree, and that the judgment-debtors who while such decree is subsisting against them have been so compelled to perform the promise can claim contribution from the others who have not satisfied the decree (according to their shares), and that this liability to contribution is not affected in any way by the release of some of the judgment-debtors by the decree-holder from the performance of the promise unless of course a contract to the contrary between all the parties liable to contribute has been established.
[i] https://www.indiacode.nic.in/handle/123456789/2191?sam_handle=123456789/1362
[ii] https://indiankanoon.org/doc/243421/
[iii] https://indiankanoon.org/doc/1513012/
[iv] Shankerlal vs Motilal And Anr., 1956, AIR 1957 Raj 267.
[v] AIR 1915 Mad 675
[vi] AIR 1948 Nag 292
[vii] AIR 1949 Cal 242
[viii] AIR 1954 Trav-Co 499