Indian Contract Act, 1872 — Ss. 43 & 44 — Joint decree — Execution — Release or non-proceeding against one joint promisor — Effect — Decree-holder’s right
Where a money decree is passed jointly against several judgment-debtors, and the decree does not impose any restriction on execution, the decree-holder is entitled, by virtue of Sections 43 and 44 of the Indian Contract Act, 1872, to proceed against any one or more of the judgment-debtors of his choice for recovery of the entire decretal amount. The fact that the decree-holder had earlier proceeded against some judgment-debtors and realised part satisfaction does not preclude him from proceeding subsequently against another judgment-debtor for recovery of the balance. Release or non-prosecution of one joint promisor does not discharge the others. No judgment-debtor has a right to dictate the mode or sequence of execution. The only right available to the judgment-debtor proceeded against is to seek contribution from the other joint promisors or, in the case of a guarantor, reimbursement from the principal debtor.
(Paras 6–7)
Execution — Attachment of salary — Duty of Executing Court
In proceedings seeking attachment of salary, the executing Court is required to call for salary particulars directly from the employer of the judgment-debtor and determine attachable amounts in accordance with law. Reliance on unmarked documents produced by the judgment-debtor is impermissible.
(Paras 8–9)
CASE DETAILS
M.G. Brothers Finance Ltd., Yemmiganuru v. J. Badarinath and Others
Civil Revision Petition No. 6799 of 2005
Decided on: 21 August 2006
Court: Andhra Pradesh High Court
ANALYSIS OF FACTS
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The revision petitioner obtained a joint money decree against several defendants for recovery of Rs. 1,21,225/- with contractual interest.
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The decree-holder initially filed E.P. No. 74 of 2001, proceeded against respondents 2, 3, 5, 6 and 7, realised part of the decretal amount, and recorded part satisfaction.
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For recovery of the balance amount, the decree-holder filed E.P. No. 90 of 2004, seeking attachment of the salary of the fourth respondent.
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The fourth respondent objected contending that:
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The decree was a joint decree, not joint and several;
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The decree-holder, having earlier chosen to proceed against other judgment-debtors, could not later proceed against him;
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Other judgment-debtors had sufficient means to discharge the decree.
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The executing Court accepted this objection and dismissed the E.P., holding that the decree-holder must continue execution only against those judgment-debtors against whom it had earlier proceeded, and also referring to absence of proper salary particulars.
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Aggrieved, the decree-holder filed the present revision.
ISSUES FOR CONSIDERATION
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Whether, in a joint decree, the decree-holder is restricted to proceed only against those judgment-debtors against whom execution was earlier levied.
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Whether non-proceeding or partial satisfaction obtained from some joint promisors discharges the remaining judgment-debtors.
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Whether the executing Court was justified in dismissing the execution petition on the ground relating to salary particulars.
RATIO DECIDENDI / LAW APPLIED
1. Applicability of Sections 43 and 44 of the Contract Act (Paras 6–7)
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Section 43 expressly enables the promisee to compel any one or more of the joint promisors to perform the whole promise.
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Section 44 clarifies that release of one joint promisor does not discharge the others.
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These statutory provisions apply equally to execution of a joint decree, unless the decree itself places a fetter.
The Court held that:
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The decree in question was a joint decree without any restriction on execution.
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The decree-holder had an absolute right to proceed against any judgment-debtor for the entire balance amount.
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Courts cannot dictate the manner, proportion, or sequence in which execution should be levied.
2. No Right in Judgment-Debtor to Object to Selective Execution (Para 7)
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A judgment-debtor cannot contend that execution should first be exhausted against others.
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His remedy lies only in contribution against co-judgment-debtors or, if he is a guarantor, against the principal debtor.
3. Error of the Executing Court (Paras 7–8)
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The executing Court erred in relying on precedents which did not consider Sections 43 and 44 or the binding ratio of the Supreme Court in Indexport Registered.
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It also erred in relying upon an unmarked salary document produced by the judgment-debtor.
4. Proper Procedure for Salary Attachment (Paras 8–9)
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The executing Court must:
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Issue notice to the employer;
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Obtain authentic salary particulars;
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Determine attachable salary strictly as per law.
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FINAL HOLDING
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The Civil Revision Petition was allowed with costs.
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The order dismissing E.P. No. 90 of 2004 was set aside.
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The executing Court was directed to:
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Call for salary particulars from the employer of the fourth respondent; and
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Proceed with attachment in accordance with law.
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LEGAL SIGNIFICANCE
This decision reaffirms that joint liability under Sections 43 and 44 of the Contract Act confers full discretion on the decree-holder in execution, and that no judgment-debtor can resist execution on the ground that others were earlier proceeded against or have sufficient means. The ruling reinforces creditor autonomy in execution proceedings and limits judicial interference to procedural compliance alone.
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