VANKADARA BALLA GURAPPA Vs. VANKADARA KRISHNA MURTHY

JUDGEMENT

(1.) (Judgment of the bench delivered by Hon'ble the Chief Justice) This appeal against the order of Obul Reddi, J in CMA No. 247 of 1967 raises a question as to whether the decree-holder who has obtained a decree against several persons is precluded by the doctrine of merger from executing his decree against the others even in proportion to their share in the decree by reason of the fact that the interest of one of the Judgment-debtors devolved on him. Our learned brother has held that the merger being only partial and not complete, the second proviso to Or, XXI, R. 16 CPC has no application and that in such cases the rule in Sankaralingam v. Arumugam(1) must govern the situation. The decree as passed seems to be in favour of several decreeholders. We are, however, concerned with E. P. 42 of 1964 filed by a joint decreeholder who sought for attachment of the immovable properties of defendants 3 and 5, the appel. lants herein, His right to proceed against them was resisted on the ground that the property of one of the other judgment-debtors has devolved on him under a will in his favour. The contention is that as the estate of one of the joint judgment-debtors has devolved on the aid decreebolder with the result that in relation to the decree he in the shoe of the deceased judgment-debtor he cannot, in law execute the decree as against the co-judgment-debtors, Mr. Rammohan Rao, learned counsel for the judgment-debtors appellants argues thus : The liability of the judgment-debtors in relation to the decree-bolder was joint and several, It was open to the decreeholder to execute his decree solely against one judgment-debtor. Of course it was also open to him to execute it against all other judgment-debtors to whatever extent, he chose. The liability of each judgment- debtor is indeed joint and several with the result that the payment by one will be payment on behall of all. So then, as soon as one of the judgment-debtor's interest devolves by operation ot law or otherwise on the decreeholder, he cannot execute his df cree as against the other judgement-debtors. The decree as it is shall be deemed to have become, on account of this merger, inexecutable and the only right as in the case of one of the joint debtors paying the whole decretal amount would be to sue for rateable contribution. Any relief by way of execution is against law. This argument in our view, is fallacious. It is not easy to understand how by the devolution ot the estate of one of the judgment debtors on a decreeholder or on one of the joint decreeholders the right of the decreeholder to the extent it is executable as against the judgment-debtors is extinguished. Certainly it is not a case where it can be said that the decree ought to be deemed to have been executed or satisfied from out of the estate of the deceased judgment-debton The estate may be too meagre to meet the demand. That apart it is evident that the right of the decreeholder is not confined to proceeding against one judgment-debtor. He is not obliged to enforce his decree against only a particular judgment-debtor. The decree can be enforced against all. No doubt it can be enforceable against even a single judgment-debtor as well for the entire claim. But if the decree can not be satisfied out of the property in his possession, the decree holder's right does not end with it. It all depends upon the estate of the judgment-debtor and also the choice of the decree holder. Merely because each judgment-debtor is liable for the entire decretal amoun it is not correct to say that the right of the decreeholder is co-extensive with the liability of one of the judgment-debtors and does not extend beyond. Indeed the decreeholder in exercise of his right can execute bis decree against the Judgment-debtors one and all till his decree is satisfied Thus the right of the decreeholder is co-extensive with the liability of all the judgment-debtors and is extinguished only when the total claim is satisfied. It may, oi course, be extinguished by operation of law such as statute of limitation or any express provision of law. Indeed it is the contention of the appellants that it is extinguished by the doctrine of merger. That doctrine in so far as execution proceedings are concerned is embodied in the proviso to Or. XXI, R. 16 C. P. C. Can it be said that this case is attracted by the said provision ? The said section reads thus :-

(2.) The second proviso applies to cases where there is a money decree against two or more persons and such decree is transferred to one of them either by act of parties or by operation of law. In that case the transferee cannot execute the decree against the co-defendents i. e. the other judgment-debtors even though the judgment debtor has stepped in the shoes of the decreebolder, That is because on account of merger of the rights of the decree-holder in the judgment-debtor the decree becomes extinguished. To be more precise as the right of the decreeholder and the liability of the judgment-debtor become united in one and the same person the decree is rendered inexecutable. Both the capacities being merged in one and the same person nothing remains to be enforced and the decree should be treated as satisfied. The instant case does not come within the letter and meaning of the proviso. Obviously enough it is not a devolution of interest of a decree holder on a judgment-debtor. It is on the other hand a case of devolution of estate of one of the judgment-debtors on the decree-holder. The proviso does not therefore in terms apply to such a case. Apart from the language of the pro. viso if the case be judged on the broad principle of merger it is plain that unless the merger is complete the rights and liabilities cannot be said to have been discharged, The decreeholder bad right to enforce bis decree against all the judgment-debtors. By reason of devolution of interest of one of the judgment-debtors of course he steps in his shoe but that cannot prevent him from enforcing his decree against the other judgment-debtors to the extent the decree is not satisfied. Of course, if their interest also had devolved on him there would have been complete merger. The capacity of the decreeholder and that of the judgment-debtors would have then merged in one. But that is not the situation now. The distinct character of a decreeholder still remains. If there was merger it was to the extent of one of the judgment-debtors but not all. By the transfer of interest of one of the judgment-debtors in favour oi the decreebolder, it cannot be said that the entire claim of the decree- holder which was enforceable against others as well became extinguished or became unenforceable by way of execution. We are supported in our view by the concensus of judicial opinion in this behalf. In Sankarlingam v. Arumugam Pillai(1) (supra), the Madras High Court had occasion to consider the doctrine of merger. It so happened that in that case the assignee of a promissory note obtained a decree against defendants 1 to 6, the executants of the note and defendant No, 7, the payee, and the assignor, a Hindu female. Defendant 7 died. The assignee and defendant 8 to 10 her reversionary heirs became entitled each to one fourth share of the property held by her. Thereafter the decreeholder transferred the decree and the assignee took out execution. The question was whether the decree became ioexecutable by virtue of the doctrine of merger. It was held that Or. XXI, R. 16 CPC did not in terms apply. Further as there was only a partial and not a complete merger, the decree did not become inexecutable in its entirety but only to the extent of 1/4th. Therefore defendants 8 to 10 can be proceeded against with regard to 3/4tb of the amount of Decree, In coming to the conclusion, the learned Judges relied on Asia Bibi v. Aziz Ahmed(2) and also on the previous Madras decisions i. e. (1926 Mad. 1141 and 1927 Mad. 937), Asia Bibi v, Aziz Ahmed(2) was concerned with the rights of a decree holder who became the heir of one of the Judgment- debtors It was held in that case that "the proviso does not apply to a converse case where the joint and personal liability of one or two or more judgment-debtors is not fastened on the decreeholder but the latter acquires either by private treaty or operation of law a share in the estate of one of the judgment-debtors; there being no co-exten- siveness of rights and liabilities there is no merger". As already noticed no such complete merger of the rights and liabilities can be said to have taken place in this case, It is difficult to assume that the rights of the decreebolder which are more extensive than the liability of the judgment-debtor could, to the extent they are in excess, be said to have been extinguished merely by reason of the transfer of the interest of the judgment-debtor by testamentary disposition. The right that was originally there as against the other judgment-debtors still continues. Proviso to Or. XXI K. 16 does not in terms apply to our case. Nor the doctrine of merger, as already said, has any application to the facts of the case. The cases of total merger and partial merger cannot be said to be identical. They differ in their legal incidents. The learned judge was right in holding that it was not a complete merger; nor is it a case where by reason of Or. XXI R. 16 CPC or by the application of the doctrine of merger it can be said that the decree became inexecutable against the other judgment debtors. It is not the judgment-debtor who stepped into the shoes of the decreeholder; nor what was transferred to the decreebolder covered the entire claim of the decreeholder. The liability of the judgment-debtor in this case was not co-extensive with the right of the decreeholder both in law and in fact.

(3.) The decreeholder has therefore the right to proceed against the other judgment debtors to the extent of bis liability in proportion to bis share in the decretal amount. The appeal therefore fails and is accordingly dismissed.