The Judgment of the Court was delivered by

Subramonia Iyer, J.:— The question referred concerns the scope of the second proviso to R. 16 of O. 21, Indian Code of Civil Procedure (Act V of 1908)(Rule 14 of the Travancore Code) which reads:

“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.”

2. The facts are: The special appellant is the transferee of a decree passed on foot of a deed of hypothecation executed by deceased Pappu, a Muslim, father of defendants 1 to 4 to defendant 5 to secure future subscriptions in a chitty. The hypothecatee transferred his rights to defendent 6 who in his turn assigned them to the plaintiff. The decree directed recovery of the amount claimed and the costs of the suit (a) by sale of the first and third items of the hypotheca exonerating the second, (b) from the assets of the deceased Pappu and (c) from defendant 5 personally as also the assets of the chitty whereof he was the foreman. There was also a decree for costs against defendant 1 who contested the suit. The second appeal arises out of an application for execution of the decree filed by the appellant as transferee.

3. Defendant 1 resisted execution. His objection was that the assignment of the decree operated to discharge it and not to convey any right to the transferee because the consideration therefor was supplied by defendant 2 from out of the funds forming part of the estate of deceased Pappu. The objection was overruled by the Munsiff owing to non-compliance with a special provision contained in the Travancore Code of Civil Procedure in R. 1(i)(b) O. 21 which enacted that payment of money under a decree out of court to the decree-holder should be by postal or anchal money order or on a registered receipt.

4. The objector's appeal to the District Judge succeeded in securing a setting aside of the order for execution passed by the Munsiff and a remit of the case to him for fresh disposal after consideration of R. 14 of O. 21 a plea of non-execut-ability of the decree whereunder, the written objection of defendant 1 as interpreted by the learned Judge was wide enough to comprehend.

5. After remand parties adduced verbal and documentary evidence. The Munsiff found against the plea that the price of the transfer of the decree was from out of the estate of the debtor deceased Pappu, and allowed execution. The District Judge in appeal by defendant 1 concurred with the Munsiff on this point but differed from him and held that the assignment of the decree was taken with the money of defendant 2, benami for him.

6. This circumstance, in the view of the learned Judge, attracted the second proviso to R. 14 of O. 21. He, therefore, allowed the appeal and dismissed the application for execution. The question of the user of the money of the estate of the debtor Pappu to obtain the assignment of the decree stands concluded by the concurrent findings of the courts below.

7. The question that remains is whether a decree obtained against the assets of the deceased debtor represented by his legal representatives, defendants 1 to 4, who being Muslims inherited in definite shares would cease to be executable on a transfer thereof being obtained in the name of a stranger benami for one of the heirs.

8. The second proviso to R. 16 of O. 21 is the result of an addition of three words “the payment of” to proviso (b) to Section 232 of the CPC, Act 14 of 1882. Instead of “a decree for money” in proviso (b) of the earlier Act we get “a decree for the payment of money” in proviso 2 in the later Act.

9. In the first Indian Code of Civil Procedure, Act 8 of 1859, there was no prohibition to execution by a transferee as contained in proviso (b) to S. 232 of Act 14 of 1882 or proviso 2 to R. 16 of O. 21 of Act 5 of 1908. The corresponding provision relating to the execution of a decree by its transferee in the Code of Civil Procedure of 1859 is contained in S. 208 which provided:

“If a decree shall be transferred to assignment or by operation of law from the original decree-holder to any other person, application of execution of the decree may be made by the transferee to whom it shall have been so transferred or his Pleader and if the court shall think proper to grant such application the decree may be executed in the same manner as if the application were made by the original decree-holder.”

10. Judicial decisions rendered when Act 8 of 1859 was in force which occasioned the introduction of the concerned proviso in the later Code afford a clue to the solution of the question and the clue consists in certain fundamental principles of substantive law as also of adjective law.

11. Execution being a proceeding to enforce a decree comes under the head of purely adjective law. It is an elementary rule of procedure that the same individual even in different capacities cannot be both the plaintiff and defendant in one and the same action in any of its stages, whether before decree or after decree in proceedings in execution (see Rustomji v. Purshotamdass, 25 Bom 606 (A) at p. 613, Jenkins, C.J).

12. The doctrine of merger which is a fundamental principle of substantive law is that when the opposite characters of debtor and creditor are united in the same person there is an extinction of the liability proportionate to the quantum of the coalescence of the two characters; if co-extensive the extinction is complete; otherwise it would be pro tanto.

13. In Degumburee Dabee v. Eshan Chunder Sen, 9 Suth WR 230 (PB)(B) a Full Bench of five Judges presided over by Sir Barnes Peacock, C.J, held that one of several judgment-debtors who purchases a decree against himself and his co-debtors cannot issue execution against his co-debtors and recover from them the whole amount of the common debt. His sole remedy is to sue them for contribution and to compel them to pay him their shares of the amounts for which the decree-was purchased.

14. There having been no provision in the Code of Civil Procedure the question had to be and was resolved upon principles of justice, equity and good conscience. Peacock, C.J, in whose judgment Bay ley, J., concurred said:

“It appears to me that this case shows clearly that, if one debtor satisfied the judgment debt, and takes an assignment of it, he cannot enforce it by execution or in any way against his co-debtors. His only remedy is to sue them for contribution and to compel them to pay him their share of the amount for which the decree was purchased, having regard to the proportion in which they were-bound, inter se, to satisfy the original decree.

“It is said, if you do not allow the plaintiff to execute this decree, you will put him to all the inconvenience of instituting a regular suit for contribution. But suppose you do allow him to execute it, you will force the defendants to sue for contribution. It appears to me that certainly would be a very inconvenient course, and would lead to a multiplicity of actions, which the law abhors.

“It appears to me, upon the general principles of equity, that the debtor in this case, having taken an assignment of the judgment, was not entitled to enforce it by execution against his co-debtors.’ (page 234).

15. Seton-Karr, J., in a concurring judgment observed:—

“I am now prepared to say that the decree under the circumstances, when purchased by one co-debtor, ought not to have been executed at all, and that the only remedy of the debtor-purchaser, was to proceed against his co-debtors in a regular suit for their shares of the contribution to the common debt.

16. I think a decision to this effect, setting out the execution of the decree altogether, and declaring the debt extinguished as far as the original decree-holder was concerned, is one consonant to equity, to public policy, and to that which should be the aim of our courts, namely, the avoidance of multifarious and harrassing litigation”.

17. Phear, J., stated his reasons in a separate judgment as follows:—

“I agree so entirely with the judgment of the Chief Justice that I do not propose to add anything to it, except so far as to say this, that it seems to me that a money decree may be treated simply as an order of the court as between the parties, directing that the one party shall pay to the other a certain sum of money.

18. Execution is merely a process provided for the purpose of securing obedience to this order. Therefore, as soon as payment has been made by the person ordered to pay, there is in one sense an end of the decree, and no further execution can be taken under it. If that is so, then the moment one of the judgment-debtors in the case before us, who was himself bound to pay the whole debt, did satisfy the judgment-creditor by purchasing the decree—and as regards this result, it does not matter how many hands the decree had previously gone through — the whole object of the decree was fulfilled, and process of execution ought not to have issued.

19. It is another question how the judgment-debtor, who has in this way satisfied the judgment-creditor is to get reimbursed, by his co-debtors in the event of their declining to do so without compulsion. The obvious course for him to take is to bring a suit against them collectively for contribution”, (page 235).

20. Macpherson, J., separately recorded his concurrence in the judgment of the Chief Justice.

21. This rule was followed by the Allahabad High Court in Khoshalee v. Nund Lall, 6 NWP HCR 1 (C) & has since been adopted by the Legislature in the last proviso to Section 232 of the CPC Banarsi Das v. Maharani, 5 All 27 (D) at p. 33. In 5 All 27 (D) the question of the executability of a decree obtained by several persons after the death of one of them whose legal representatives were the judgment-debtors arose for consideration. The Code of Civil Procedure did not provide for such a contingency.

22. The Code envisages execution of a decree as a whole. One or more decree-holders may put the entire decree in execution on behalf of all the decree-holders. No decree-holder in the case of a joint decree can execute for his share of it. To allow execution of the entire decree in Khosalee's case (C) would lead to the anomaly of the decree being executed against judgment-debtors who are themselves decree-holders in respect of a part.

23. The shares in the decree as between the several decree-holders had been decided in other proceedings. The doctrine of merger under the substantive law operated to extinguish the decree to the extent of the share of the deceased decree-holder, that share having devolved upon the judgment-debtors. Mahmood, J., said:

“Whilst in a matter of this kind we are bound to consider the language of the Code of Civil Procedure, we do not think that the rules of adjective law should be administered regardless of the fundamental principles of substantive law and equity. Where the language of the statute itself is silent upon any special point, the courts in applying the rules of procedure will import such consideration as will render the application of those rules consistent with equity and substantive law.” (page 32).

24. Execution of the decree to the extent to which it subsisted was allowed, that is to say, less the share of the deceased decree-holder which had been extinguished.

25. The law of procedure is meant for the enforcement of rights and obligations under the substantive law, and they (the two branches of law) should, therefore, conform to and not conflict with each other. The second proviso to R. 13 of O. 21 of the CPC is only an application of the rule of extinction of liabilities on account of the doctrine of merger.

26. That doctrine in its operation on substantive rights and incidentally its application to execution of decrees was considered by a Bench of this Court in — ‘Kumara Pillai v. Kurien Ouseph’, 1952 Trav-C 292 (AIR V 39)(E). The application of that doctrine to execution of decrees was directly considered to a later case of this Court in — ‘Mamman Mathai v. Geevarshese Zacheria’, 1952 Trav-C 487 ((AIR V 33)(P)) where the earlier decision was followed and the authorities with reference to the meaning and scope of the second proviso to R. 16 of O. 21 were exhaustively discussed and a view indicated though no final decision was taken as the facts did not call for it. These decisions were after the reference under answer.

27. It is not necessary for us to traverse the same grounds afresh in this judgment. It is enough to record our affirmance of the decisions taken and indicated in those cases and of the reasons mentioned therefor. A decree for payment of money in proviso 2 to R. 16 of O. 21, is, as indicated in ‘Mamman Mathai's case (F)’ a personal decree passed jointly against more than one person.

28. The transfer of such a decree to one of them may be as provided in Rule 16 by assignment in writing or by operation of law as in a case where the decree-holder dies and one of the judgment-debtors is his legal representative. Purchase of the decree in the name of a stranger benami for one of the judgment-debtors would amount to a transfer to a judgment-debtor within the meaning of the proviso.

29. It is clear that the total ban to execution contained in the second proviso to R. 16 of O. 21 applies only to the case of a transfer of all the rights of a decree-holder or decree-holders to a judgment-debtor, operating as an extinction of the debt in toto and that it has no application to the vesting of a share of the rights of the sole decree-holder or of one or more of the decree-holders under the decree in one or more of the judgment-debtors which would extinguish it only in part leaving the rest alive.

30. Nor does the proviso contemplate the converse case of the contingency of a combination of the two characters of debtor and creditor wholly or in part in the same person arising on account of any deed by or death of some of the judgment-debtors. The doctrine of merger would apply to those cases as well. The question is whether the doctrine can be given effect to in execution and if so how?

31. In 9 Suth WR 230 (FB)(B) the doctrine was applied when the then Code of Civil Procedure did not contain a provision like the last proviso in question which was as already stated occasioned by that decision. The question arises whether the existence of that proviso negatives the application of the doctrine in execution to cases other than those covered by it.

32. An executing court cannot, it is true, go behind the decree. But it can consider whether a decree ever existed and if so how much of it subsists, as it is a question within the ambit of the first clause of Section 47 of the CPC, Act V of 1908, corresponding to S. 244 of Act XIV of 1882 which provides that:

“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.”

33. It is indisputable that the existence of a decree is essential for its execution. The question of its existence or continued existence is therefore the primary question for the consideration of the executing court. A question whether what purports to be a decree has really the force or effect of a decree is one within the ambit of S. 47.

34. If, for example, the court which passed the decree had no inherent jurisdiction to pass it, the decree would be void and that question can and has to be considered by the Court where its execution is sought. When on account of the operation of the doctrine of merger a decree is extinguished in whole or in part, to the extent of the extinction there will be no decree, and the question of such extinction can, therefore, be considered by the execution court.

35. It was so held in — ‘Kudhai v. Sheo Dayal’, 10 All 570 (G). The above principles would render it competent for the executing court in the present case to hold the decree inexecutable to the extent of the share of defendant 2 in the estate of deceased debtor Pappu and allow execution of the remaining part of the decree. The second appeal will now be set down for hearing before a Single Judge.

36. Order accordingly.