ABDEALIM TAYABALI LOTIA Versus SHABBIR

1. This is a Civil Revision Application under section 115 of Code of Civil Procedure directed against an order dated 27‑2‑1993 passed by learned IIIrd Senior Civil Judge, Karachi‑South, in Execution Application No. 28 of 1992, Suit No. 5027 of 1985, Shaikh Abdeali v. Shabbir and others whereby an application moved by respondents/judgments‑debtors Nos. 2, 3 and 4 was allowed with the direction to them to deposit the decretal amount according to their share out of the total decretal amount, hence the present Revision.

2. I have heard Mr. M. Zia Qureshi, Advocate for applicants and Mr. Ghulam Abbas Pishori, Advocate for respondent No. 2 while other respondents have remained absent though duly served.

3. The only contention of the learned counsel for applicants is that decree which has been passed jointly against the respondents/judgment‑debtors could be executed completely/wholly against any one of the respondents, therefore, the finding of the learned Senior Civil Judge that decree could only be executed against the respondents/judgment‑debtors proportionately and not whollx was illegal and liable to be set aside. He has placed reliance upon Kannayya Reddi v. Muthu Reddi (AIR 1939 Madras 508), S‑U. Ellappa Mudaliar v. Swaminatha, Mudaliar (AIR 1933 Madras 755) in support of his contentions.

4. Mr. Ghulam Abbas Pishori has argued that decree having been passed jointly against the respondents could only' be executed against each of the respondents/judgment‑debtors proportionately and not wholly against each of the respondents.

5. Section 43 of the Contract Act reads:

6. "When two or more persons make a joint promise, the promise 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.

7. 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.

8. 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.

9. There is no dispute that joint decree for an amount of Rs.1,00,000 was passed against the respondents/judgment‑debtors jointly who had executed the receipt for the sum of Rs.1,00,000 as friendly loan payable jointly by the signatories, therefore, the debt and liability having been incurred jointly, the liability of each of debtors would be for whole amount.

10. In Kannayya Reddi v. Muthu Reddi (AIR 1939 Madras 508) case it was held that when claim is based on a joint decree obtained against partners for debt borrowed for the purpose of partnership trade and in execution of which one partner alone had to pay the entire amount due under the decree, in such a case the law of partnership does not prohibit a claim for contribution against the other partners and one partner paying whole decretal amount can claim contribution by suit against others. In S‑U Ellappa Mudaliar v. Swaminatha Mudaliar (AIR 1933 Madras 755) case it was held that a partner who is made to pay whole of decretal amount for a partnership debt is entitled to maintain a suit for contribution as against others. The above‑cited cases are based on the claim of partner against co‑partners while in the instant case claim is not of one partner against co partners. However, the principle has been led down that any one of decree holder could recover the entire decretal amount from any of the, judgment debtors who in turn could recover proportionately decretal amount from other A judgment‑debtors. In the instant case claim of decree‑holder was based on the acknowledgement receipt jointly executed by the judgment‑debtors, therefore, the debt and liability would be incurred jointly and the liability of each debtor would be for whole amount under section 43 of the Contract Act. In Abdur Rehman v. Rura and others (AIR 1928 Lah. 962) it was held that where the debts are jointly incurred the liability of each is for the whole amount. In Jamuna Prosad Singh v. (Bahuria) Ram Sakhi Kuer and another (AIR 1933 Patna 24‑DB) it was held where decrees for cost did not indicate the proportions in which cost were to be borne by the respondents and the accepted rule is that such a decree imposes a joint and several liability on all the respondents. Reliance was placed upon Midnapur Co. Ltd. v. Madan Marwari (AIR 1923 Patna 215). In view of the above reasoning and case‑law the finding of the learnedl9 Senior Civil Judge is legally erroneous which is hereby set aside, consequently revision application is allowed with no order as to costs.

11. A.A/A‑89/K Revision accepted.