P.R.M. Muhammad Abdul Kadir Sahib Marakkayar vs Syed Abdul Kadir Marakkayar

Madhavan Nair, J.—This is an appeal against an appellate order in a matter relating to the execution of a decree for Rs. 1069-4-0 with

interest. In O.S. No. 134 of 1918 on the file of the District Munsif''s Court of Paramakudi the plaintiff obtained for the said amount a joint decree

against defendants 1, 5 and 6 personally and the assets of one Hamid in the hands of defendants 2 to 4. The decree is dated 13th February, 1919.

On the 24th August, 1919, it was transferred to the appellant and he applied to the Court on 8th September, 1919, to recognise the transfer and

to execute the decree. On 16th December, 1921, the 1st defendant a Muhammadan--died. His daughter also died, and, on her death, the assignee

decree-holder, as her husband, became one of the heirs of the deceased 1st defendant and in that capacity one of the judgment-debtors. The 5th

defendant against whom the decree was sought to be executed objected to the execution mainly on the ground that the decree has ceased to be

executable under Order 21, Rule 16, Clause (3) inasmuch as the assignee decree-holder himself became one of the judgment-debtors as the legal

representative of the 1st defendant. This objection was overruled by the District Munsif but was allowed by the District Judge. The transferee

decree-holder has filed this appeal against the order of the District Judge dismissing his application.

Order 21, Rule 16 after providing that when a decree has been transferred by assignment in writing or by operation of law, it may be executed

by the assignee, lays down in proviso 2, that

Where a decree for the payment of money against two or more persons has been transferred to one of them it shall not be executed against the

others.

The learned vakil for the appellant argues that the proviso does not apply to the present case for two reasons: (1) because, while the proviso

contemplates a transfer of the decree (by the assignment or by operation of law) to one of several judgment-debtors, in the present case there has

been no such transfer to a judgment-debtor, inasmuch as the judgment-debtor died two years after the transfer, and (2) because, while the proviso

as illustrated by several decisions contemplates the transfer of a decree for the payment of money personally (personal decree) against two or

more persons jointly, in this case there has been no such transfer of a personal decree inasmuch as there is no personal decree against the

transferee decree-holder as he is in law liable only for the assets of the 1st defendant in his hands.

In my opinion both these arguments are unsubstantial as they ignore the principle underlying the rule. No authorities have been cited in support of

them. "" When on account of death a creditor becomes heir to a debtor "" (as here) or "" a debtor becomes heir to a creditor and thus the two

opposite characters of '' debtor and creditor '' become united in the same person, the obligation to pay money may be regarded as ex-tinguished.

[See Banarsi Das v. Maharani Kuar (l)]. This principle which, as Mahmud, J. points out, owes its origin to the confusio of the Roman Law, has

been applied by proviso 2 of Order 21, Rule 16 to the case of joint judgment-debtors, when a decree for the payment of money has been

transferred to one of them. In Degumbree Dabee v. Eshan Chunder (1868) 9 W R 230 it was held that one of several judgment-debtors who

satisfied the judgment-debt by taking an assignment thereof could not enforce it by execution against his co-debtors and that his only remedy

against them was by a regular suit for contribution. This rule has been adopted by the Legislature in proviso 2 of Order 21, Rule 16. ""The principle

upon which this rule is based seems to be that when one of the persons jointly liable under a decree takes in himself the character of creditor and

judgment-debtor in respect of the whole decretal debt, the effect is to extinguish the liability of all the co-judgment-debtors under the decree.

[Banarsi Das v. Maharani Kuar ILR (1882) A 27 . It is clear that the assignee decree-holder and the 5th judgment-debtor are joint judgment-

debtors and one of them at the same time is also a decree-holder. In a case like the present where the transfer of the decree happens by death of

the judgment-debtor, the two characters of ''debtor and creditor'' can become united only in the persons of the legal representative of the

judgment-debtor; and when such ''union'' takes place the ''proviso'' would apply. Thus, there is no meaning in saying that the decree has not been

transferred to the judgment-debtor. Order 21, Rule 16, proviso 2, therefore clearly prohibits the present appellant from executing his decree

against his co-judgment-debtor, the 5th defendant-respondent. The decision in Lalla Bhagun Pershad v. Holloway ILR (1885) C 393 does not

support the appellant as in that case there was no joint personal decree against the judgment-debtors. Referring to the facts the learned Judges

state: ""It [Section 232, proviso (b) ] does not apply to such a case as the present, in which nothing was due from the assignee of the decree

personally, he having been made a defendant only by reason that he had become the owner of the property mortgaged under the bond and subject

to the mortgage."" (See p. 396.)

The second argument is also equally devoid of any substance. Decisions have laid down that the expression ""a decree for the payment of money

against several persons in proviso 2 of O.21, Rule 16 signifies a personal decree against two or more persons jointly. ""See Laldhari Singh v.

Manager, Bharat-putra Estate (1911) 12 I C 70 and Panachand v. Sundarabai ILR (1907) B 308. It is not disputed that there was such a decree

in this case against the predecessor-in-interest of the assignee decree-holder (i. e., the 1st defendant judgment-debtor) and other defendants and

this personal decree has been by operation of law transferred to the appellant who is the legal representative of the judgment-debtor, in effect the

judgment-debtor himself. This is all what is required to make the ''proviso'' applicable and in consequence to render the decree inexecutable. If I

give effect to the arguments of the learned vakil for the appellant, it would mean that I should exclude from the operation of the proviso transfer of

personal decrees brought about by the death. The principle underlying the rule does not contemplate this restriction in its application.

This Civil Miscellaneous Second Appeal is dismissed with costs.