SANKARALINGAM PILLAI Vs. ARUMUGAM PILLAI

JUDGEMENT

(1.) This revision petition has been referred to Bench as it raises an important question of law. The plaint, as the assignee of a promissory note, obtained a decree against defendant 1 to 6 the executants of the note (with whom we are not concerned) and the seventh defendant, the payee and the assignor, a Hindu female. The seventh defendant died and the plaintiff and defendants 8 to 10 her reversionary heirs became entitled each to a fourth share of the property held by her. The plaintiff then transferred the decree to the petitioner in the lower Court, who applied for execution; but nothing turns upon the transfer, as the transferee stands in the shoes of the plantiff. The question to decide is, has the decree become inexecutable by virtue of the doctrine of merger? The Court below has allowed execution and its order is challenged here by defendants 8 to 10.

(2.) Order 21, Rule 16, Civil Procedure Code, has been relied upon by their learned Counsel, but there can be no doubt that the provision does not in terms apply. It enacts 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. True, this rule applies, whether the transfer has been effected by operation of law or by act of parties. To give an example of the former class of transfer, let us suppose that A obtains a decree against X and y. A dies and X as his heir becomes under the law the assignee of the decree. The rule enacts that the decree should be deemed extinguished and that X should not be permitted to excute it as against Y. But the case in hand is the converse of the illustration just put. If in the example given X dies and A as his heir becomes liable under the decree (which is very different from becoming entitled to rights under the decree), the section in terms, it is obvious, does not apply. Here there has been no transfer of the decree and what is equally patent, there has been no transfer in favour of one of the judgment-debtors - that being what the rule cited above contemplates. But apart from the letter of the section, there is a principle which it embodies, namely, where the decree-holder's right and the judgment-debtor's liability become united in one and the same individual, it stands to reason that the decree should be treated as satisfied. The question then is, whether there has been such a merger in the case as to render the decree inexecutable. As has been pointed out by Sulaiman, C.J. and Young, J., complete merger involves the co-extensiveness of the right and the liability (Asia Bibi V/s. Malik Aziz Ahmad (1931) I.L.R. 54 All. 448 at 450). Lut us now look at the position that has resulted from the death of the seventh defendant. The plaintiff has remained the judgment-creditor, but who are those that have become the judgment-debtors? The plaintiff himself and defendants 8 to 10. In other words,, the plaintiff holds a decree against himself and the three other persons. To the extent to which the plaintiff has become partially liable under the decree, to that extent there has undoubtedly been a merger. But the consequences of a partial merger are totally different from those of a complete merger. Let us again take an example. A obtains a decree against X for Rs. 300; X dies leaving A, B and C as his heirs, each being entitled to an equal third of his estate. The true position then is, that A has a decree against A, B and C; the decree is extinguished to the extent of A's share, but he can execute it against B and C to the remaining extent of Rs. 200. This is in consonance with reason and justice, but the learned Counsel for defendants 8 to 10 contends on the authority of Muhammad Abdul Kadir Sahib V/s. Syed Abdur Kadir ,. decided by Madhavan Nair, J., that the decree has become inexecutable in its entirety. That is a decision we are unable to follow, as it ignores the distinction between a partial and a complete merger. Indeed, this case must be treated as having been overruled by a later Bench decision (Subramania Chetty V/s. Kasi Chetty to which Madhavan Nair, J., was a party. The learned Judges there purport to distinguish the earlier? case; but as has been pointed out in Asia Bibi V/s. Malik Aziz Ahmad (1931) I.L.R. 54 All. 448 at 450 already referred to, it is difficult to discover on what basis the decision has been distinguished. The later ruling is clearly opposed to the earlier one and in our opinion lays down the correct principle. The Allahahad High Court in the decision already cited has discussed the matter clearly and adopted the same view.

(3.) But adopting the same principle, the Allahabad case and the Madras Bench case have applied it differently. In the former, the decree has been treated as having become satisfied pro tanto; in the latter, the judgment-creditor has been directed to execute his decree in its entirety against the entire property both in his possession and in the possession of the other heirs. In our opinion, the more logical course is that adopted in the Allahabad case. In so far as the judgment- creditor and the judgment-debtor happen to be the same person, to that extent, it is reasonable and correct on principle, to hold that the decree is satisfied. In the ultimate result it makes no difference or, to be more accurate, it ought to make no difference, which of these two methods in the process of execution is adopted, for, it must be noted that the real rights of parties can be worked out only in a suit for contribution. Let us suppose, for instance, that A obtains a decree against B the principal debtor and C the surety. A transfers the decree to C, which thereupon must be treated as having become satisfied for the purpose of execution. But that does not prevent C from pursuing his remedy against B by a suit for contribution.