MT ASIA BIBI Vs. MALIK AZIR AHMAD

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of an execution proceeding. In 1901 Bhawani Prasad and other obtained a decree for sale on the basis of a mortgage-deed against one Faqir Bux. The mortgaged properties were put up for sale from time to time but they proved insufficient to pay the whole decretal amount. Faqir Bux died during the pendency of these proceedings. In 1918 the decree-holders obtained a decree for money for the balance of the amount under Order 34, Rule 6, against the heirs of Faqir Bux. The form of this decree was slightly defective and we shall discuss it later. This decree was transferred in 1925 to Mt. Asia Bibi, the wife of Abdul Rauf, one of the heirs of Faqir Bux. It is not now disputed that Asia Bibi was not a benamidar for her husband, but had purchased this decree in her own right. She put the decree in execution against the heirs of Faqir Bux, including her husband Abdul Rauf. During the pendency of the execution proceedings Abdul Rauf died in 1929, and she became one of his six heirs. The respondent judgment-debdors then objected that owing to a merger, her right to execute the decree had become extinguished. It may also be mentioned that Mt. Asia Bibi applied for an amendment of her previous application for execution by the addition of some more properties after the death of Abdul Rauf. She had however made all the heirs of Faqir Bux parties to her application except one Hasina Bibi, who was alleged by her to have been the mistress of Faqir Bux and not his legally wedded wife. She however did not implead the other heirs of Abdul Rauf, but offered to reduce the amount of her decree to the extent of the share of Abdul Rauf in the assets of Faqir Bux.

(2.) The learned Subordinate Judge has dismissed her application for amendment on the ground that the matter was des-cretionary with the Court and it was not proper that the amendment should be allowed at such a late stage. He further held that under Order 21, Rule 16, the right of the decree-holder to execute the decree against the other judgment-debtors had become extinguished and her remedy was only by way of a separate suit for contribution. He also thought that such a suit would be the proper proceeding for the determination of the question whether Mt. Hasina Bibi was or was not one of the heirs of Faqir Bux. No doubt the applicant could not as of right claim an amendment of the application for execution by the addition of fresh properties, but it cannot be doubted that her right to apply for execution was alive in 1929 when she filed the application, She might have got this application dismissed and filed a fresh application including the additional properties as well. In these circumstances we think that the discretion would have been exercised more properly by allowing the amendment, subject to any orders as to costs which the Court thought fit to make. There was no necessity to compel her to file a fresh application. In this connexion it may be pointed out that the learned Subordinate Judge was under a misapprehension in thinking that two of the heirs of Faqir Bux, namely, Mt. Saidunnissa and Wajidunnissa, had not been impleaded previously and were sought to be brought on the record by means of this application for amendment. As a matter of fact their names had been on the record all along and they were only mentioned because the additional properties were in their posssssion. There was therefore no question of adding new parties to the execution proceedings against whom the execution might have become time- barred.

(3.) We also see no defect in the other heirs of Abdul Rauf not being brought on the, record, when the decree-holder was prepared to give credit for the entire liability of Abdul Rauf. The principal question for consideration is whether the right to execute the decree has become extinguished by virtue of the provisions of Order 21, Rule 16. The question whether the remedy of a decree-holder who acquires a part of the property of a judgment-debtor is by execution under Section 47, Civil P.C., or by a separate suit for contribution is really a matter of procedure and not of any substantive law. Nor do we think that any question of equality apart from mere convenience, is involved. Where the rights of a decree-holder and the liability of a judgment-debtor become united in one and the same person there would obviously be merger. But the doctrine of complete merger involves the essential condition of the co-extensiveness of such rights and liabilities. The proviso to Order 21, Rule 16 is in the following words: Provided also 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.