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Report No. 27

Section 73

A question has been raised as to the meaning of the expression "same judgment-debtor" in this section. For example, where a decree is passed against A as partner and another decree is passed against A in his personal capacity, the question is whether the respective decree-holders can share by rateable distribution. The principle appears to be now well-established, namely, that it is not so much the personality of the judgment-debtor as the property against which relief is claimed, which is regarded as relevant1.

The point has arisen also as regards the execution of a decree obtained against a person in his life-time and execution of another decree obtained against his legal representative; there also the same principle should apply. As has been pointed out2, the emphasis is net on the personality but on the property3-4.

No change in the law is therefore necessary.

1. Pacific Bank v. Thakur Singh, AIR 1949 Cal 396 (S.R. Das J.).

This view is to be preferred to that taken in AIR 1943 Born 156 and in Kritant Kumar v. Pulin Krishna, AIR 1938 Cal 316, which hold that the judgment-debtors are the same even if one decree is against a person as partner and the other against him personally.

2. Hoti Lal v. Chatura Prasad, AIR 1941 All 110 (FB).

3. Ramzan Khan v. Hiralml, AIR 1961 Raj 118 (Case-law discussed).

4. Dundappa v. Annaji, AIR 1953 Born 65 (FB).

Section 75

One question to be considered is, whether it is necessary to expand the scope of section 75 so as to enable rules to be made for issue of commissions for any purpose not at present mentioned in the section. No such necessity has been felt, and therefore no amendment is proposed.

A suggestion has been made to amend section 75 so as to give power to the court to appoint Commissioners for making inventories of books of accounts and movables and for initialling the account books. It is stated, that the decision of the Supreme Court in Padam v. State of UP., (1961) 1 SCR 884: AIR 1961 SC 218 contains observations which imply that such power does not exist under the Code. It is also pointed out, that the practice in some of the States is to appoint such Commissioners in suits for partition, etc. It is, however, considered unnecessary to make any such amendment, as the powers that exist under Order XXXIX, rule 7 and Order XXVI, are sufficient for all practical purposes.

Section 80

The recommendation in the Fourteenth Report1 is to the effect that section 80 be replaced by a provision whereunder the Government, etc., would be entitled to costs if notice is not given. But it is considered, that the question of costs need not be governed by a mandatory provision. As a result, the section is proposed to be omitted totally2.

2. 14th Report, Vol. I. (Shri Chari's dissent is in Vol. II).

3. See also the body of the Report.

Code of Civil Procedure, 1908 Back

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