Balanarayana Marar, J.:— Revision arises from an order in execution. Revision petitioners are some of the decree-holders in a decree for recovery of possession. The decree was challenged in appeal. After the appellate decree, some of the decree-holders transfered their rights to some of the judgment-debtors. The transferee-judgment debtors resisted the execution petition and questioned the maintainability of the execution petition. Two execution applications were also filed, one by the transferor-decree holders for recording full satisfaction of the decree and the other by the transferee-judgment debtors who sought an order that the decree is not executable. By a common order dated 7-1-1989, the Subordinate Judge, Hosdrug directed symbolic delivery to be effected. In consequence the execution applications were dismissed. Hence the revision by the petitioners in the execution petition.
2. Seven items of immovable properties were sought to be recovered from the possession of the defendants, 12 in number, on the strength of title. Page: 542There were 9 plaintiffs. By the trial court decree the plaintiffs were found entitled to recover the plaint schedule properties except items 4 and 5. The claim for mesne profits was disallowed. An appeal was preferred by the defendants wherein the plaintiffs filed Cross objections. The appeal was dismissed and allowing the Cress Objections the appellate court directed the defendants to pay mesne profits, the quantum of which was left open to be considered in execution proceedings. It appears that since then there was a compromise between some of the decree-holders and some of the judgment-debtors which resulted in two assignment deeds, documents No. 2559/82 and 2560/82. By document No. 2560/82 the properties directed to be surrendered excluding 29 cents in R.S 63/2A (part of item No. 3) were assigned by some of the plaintiffs (decree-holders) to some of the defendants (judgment-debtors). By the other document some of the judgment-debtors transferred their rights over 29 cents of land in R.S 63/2A in favour of some of the plaintiffs (decree-holders). Observing that respondents 1 to 10 in the execution petition have taken assignment of the fractional interest of respondents 11 to 15 and have become co-owners of the property, it was held that they cannot be dispossessed by executing the decree. In consequence, the petitioners in the execution petition were found entitled to be in joint possession of the property along with the judgment-debtors. That resulted in the direction for delivering the properties symbolically to the petitioners. When the matter came up before a learned Single of this Court, it was felt that there is no authoritative pronouncement on the question of law involved in this revision. The conflicting views of the various High Courts were placed before the learned Single Judge. In view of the conflicting decisions and since there is no authoritative pronouncement on this question by this Court, the matter was referred to a Bench of two Judges. That is how the matter has come up before us.
3. Heard counsel on both sides.
4. On behalf of the revision petitioners, it is contended that the assignees of part of the decree had not got the assignment recognised by the court and for that reason no rights can be claimed on the strength of the assignment. On the other hand, it is the contention of the learned counsel for respondents that the decree after transfer is extinguished pro tanto by merger and the remedy of the remaining decree-holders is only to obtain symbolic delivery and then seek partition of their share. Both counsel had taken us through various authorities in support of the contention. Since the matter is not free from doubt and since there is no pronouncement by this Court on this aspect, we deem it proper to consider the matter at some length to understand the real position of law.
5. Before adverting to the authorities cited at the Bar, it is only appropriate to refer to Rule 16 of Order XXI C.P.C which enables the Page: 543transferee from one of the decree-holders to get the assignment recognised by the court and execute the same thereafter. That rule enables the transferee to execute the decree in the same manner and subject to the same conditions as if the application was made by the decree-holder transferor. Before permitting the transferee to execute the decree, notice of the transfer has to be issued to the transferor and the judgment-debtor and the decree shall not be executed until the court has heard their objections to execution. The second proviso to the rule directs that where a decree for payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.
6. The transfer in the present case is not in favour of a stranger but in favour of some of the judgment-debtors. The question of issuing notice to the transferor and the judgment-debtor does not therefore arise, according to counsel for respondents. For that reason the transfer need not also be recognised by the court. It is sufficient if the transfer is brought to the-notice of the court in the counter-statement of the judgment-debtors and the execution objected to on that ground. Non-recognition of the assignment by the executing court is no bar in execution of the decree by the assignee vide the decision of the Supreme Court in Dhani Ram v. Sri. Ram ((1980) 2 SCC 162 : AIR 1980 SC 157). The Supreme Court held that it is one thing to say that the decree may not be executed by the transferee until the objections of the transferor and the judgment-debtor are heard. It is an altogether different thing to say that the assignment is of no consequence until the objections are heard and decided. The transfer as between the original decree-holder and the transferee is effected by the deed of assignment. If the judgment-debtor has notice of the transfer, he cannot be permitted to defeat the rights of the transferee by entering into an adjustment with the transferor. The Supreme Court further held that where a decree is assigned and the notice of the application under Order 21 Rule 16 had been served on the assignor (original decree-holder) and the judgment-debtor, merely because the assignment of a decree is not recognised by the Court its execution by the assignee will not be barred on the ground that the decree between the judgment-debtor and the assignor decree-holder is already adjusted. The transferor-decree holder had even moved the executing court by E.A No. 4 of 1987 for recording full satisfaction of the portion of the decree as far as the transferors are concerned by virtue of the transfer effected by them in favour of some of the judgment-debtors. That the court has not recognised the assignment is therefore no reason to hold that the assignment cannot be looked into or that the plea of the transferees cannot be considered in the execution petition.
7. Relying on the proviso, to Rule 16 of Order 21 CPC it is strenuously contended by the learned counsel for revision petitioners that the bar contained Page: 544in the proviso is only in respect of money decrees and that a transfer of any other decree in favour of the judgment-debtor is no bar in getting the decree executed by the decree-holders who had not transferred their rights. Counsel relies on the decision in Sheochand v. Nekiram (1969 M.P.L.J 692). In that case a decree was passed in favour of two persons for possession. One of the decree-holders applied for possession. The judgment-debtor claimed to have purchased the interest of the other decree-holder. He sought dismissal of the execution petition. A Division Bench of the Madhya Pradesh High Court held that execution cannot be dismissed unless possession is delivered by the judgment-debtor to the decree-holder. It is observed that the application for execution of decree by delivery of possession is for the benefit of all decree-holders. While holding so, it is stated that the only right which the Code of Civil Procedure gives to a purchaser of a share in the decree is under Order 21, Rule 16 to make an application for execution for the benefit of all the decree-holders. The judgment-debtors are not seeking to do that and if the purchasers have not made an application for execution, there is no occasion for the executing court to go into the question whether the purchasers have in fact acquired any right under the sale deed, and if so, what are their rights. Since one of the decree-holders had applied for execution of the decree, the Court held that he was entitled to execute the whole decree which under law is for the benefit of all the decree-holders.
8. Meeting this contention counsel for respondents would point out that the established position of law as laid down by the various High Courts is that there is an extinguishment of the decree pro tanto and the remedy of the other decree-holders is only to get symbolic delivery and not actual delivery of possession. Counsel has drawn our attention to the decision in ILR 5 Allahabad 27 and various other decisions in support of this contention. In Banarsi Das v. Maharani Kuar (ILR 5 Allahabad 27) it was held that a joint decree cannot be executed by one of the several joint holders in respect only of his share of the decree. Where one of the several joint judgment-debtors acquires the position of decree-holder in respect of the whole judgment-debt the effect is to extinguish the liability of the other judgment-debtors, and the decree cannot be executed against them. It is observed that when one of them so acquires only a partial interest in the decree, the effect is not to extinguish the entire judgment-debt but so much only of it as such judgment-debtor has so acquired. The Division Bench of the Allahabad High Court held that where one of several joint decree-holders applied for execution of his own share only and the joint judgment-debtors under the decree had inherited the right therein of one of the joint decree-holders, the application was contrary to law, that so much of the judgment-debt as had devolved Upon? such persons had been extinguished and that the application for execution should have been made only in respect of the Page: 545entire unextinguished portion of the judgment-debt. The decree in that case was for realisation of money and not for recovery of possession of immovable property.
9. The above decision was approved by a learned Single Judge of the same High Court in Kudhani v. Sheo Dayal (ILR 10 Allahabad 570). A joint decree for possession of a house by redemption was granted in that case. It was held that the rule of law against breaking up the integrity of a mortgage security is a rule aiming at the protection of the mortgagee and is not applicable to cases where the mortgagee himself has acquired the ownership of a portion of the mortgaged property. Observing that the decree does not become incapable of execution by the judgment-debtor acquiring the rights over a portion of the decree amount but is extinguished only pro tanto, it was held that this rule of law is sufficiently general to comprehend alike cases in which the decree is for money only and where it for immovable property. In this case also the court was not dealing with a decree for recovery of possession but only with a decree a redemption of a mortgage.
10. Considerable stress was laid on the decision of the Calcutta High Court in Khelat Chandra v. Peary Lal (AIR 1949 Calcutta 155). It was held that where the interest of any of the joint decree-holders in a decree for vacant or Khas possession of immovable property is transferred to one of the judgment-debtors, the decree may be executed by the remaining decree-holder. If no part of the decree is extinguished, then there can be no difficulty in executing the whole decree for the benefit of the remaining decree-holders and the transferee-judgment debtor by removing the other judgment-debtors from possession of the property under order 21 Rule 35(1). It was further held that if there be a partial merger, then the decree is extinguished pro tanto as regards the property and the result of such partial extinguishment as regards the property necessarily implies that thereafter the decree must be regarded as one for delivery of joint possession. The Calcutta High Court held that after the transfer of the interest of one of the decree-holders to one of the judgment-debtors, the decree has to be regarded as one for joint possession in favour of the remaining decree-holder and can be executed in the manner prescribed under order 21 Rule 35(2) of the Code.
11. A contention was raised before that court that neither Rule 35 nor Rule 36 of order 21 applies to the decree in the circumstances of the case. The High Court is of the view that if neither of those rules applies the executing court should proceed under Clause (e) of Sec. 51 of the Code which enables the executing court to execute the decree “in such other manner as the nature of the relief granted may require”.
12. Attention is also drawn to the decision in Hasimathunnisa Begum v. Vithal Rao (AIR 1979 A.P 273). The decree in that case provided for Page: 546joint possession. In execution physical delivery was claimed. It was held that Order 21 Rule 35(2) specifically provides the mode of execution in the case of a decree for joint possession. That sub-rule does not provide for partition of the suit property and for putting the decree-holder in possession of a specific half portion as per the decree in his favour. It was held that it was not open to the executing court to have the suit properties divided by appointment of commissioner nor could any equities be worked out. It is observed that the question of substantial justice does not mean the violation of accepted principles of law or the negation of the provisions as laid down by the Code.
13. Reliance is also placed on the decision in Milkhi Ram v. Raghunandan (AIR 1982 H.P 87). That was a case of transfer of the interest of one of the decree-holders in favour of the judgment-debtor. It was held that the decree to the extent of the interest so transferred stands extinguished and the remaining decree-holders cannot claim actual possession of decretal property but only symbolic possession of their share. One of the reasons mentioned by the High Court is that by the transfer the judgment-debtor became a co-sharer in the decretal property along with the remaining decree-holders and since no co-sharer can claim actual possession of his undivided share as against another co-sharer, the remaining decree-holders can get only symbolic possession of their share and not actual possession.
14. The request of revision petitioners is not for joint possession but for getting possession in execution of the decree on their behalf as well as on behalf of the other decree-holders. Rule 35(2) of Order 21 is applicable only in the case of execution of a decree for joint possession of immovable property. That sub-rule directs that such possession shall be delivered by affixing a copy of the warrant of delivery in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. Here is a case of an execution by a joint decree-holder and the provision applicable is Rule 15(1) of Order 21. That sub-rule provides that where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. This sub-rule enables one of the joint decree-holders to execute the decree and obtain possession. But that execution can only be on behalf of and in favour of all the remaining decree-holders. In short, one of the decree-holders is not competent to execute the decree and obtain possession in his own behalf. The request of revision petitioners as we could see from the execution petition is for getting delivery of possession in execution of the decree not only on their behalf but on behalf Page: 547of the other decree-holders. Such a course is permitted by Rule 15 of order 21. Rule 35(2) of Order 21 cannot therefore be made applicable to the present case.
15. The Calcutta High Court in Khelat Chandra's case (supra) was aware of the difficulty in applying Rule 35 or Rule 36 of Order 21. It was therefore observed that in case neither of those rules applies, the executing court has to proceed under Clause (e) of Sec. 51 of the Code which enables the executing court to execute the decree in such other manner as the nature of the relief granted may require. It was by application of this provision that the Calcutta High Court held that only symbolic delivery is possible in a case where the rights of some of the decree-holders had been purchased by the judgment-debtors. But in a case of this nature where no provision of the Code is directly applicable, the Court has to grant relief as far as can be, in order to do justice to the parties. The Bombay High Court in Shankar Hari v. Damodar Vyankaji (AIR 1945 Bombay 380) held thus:
“Where rights are conferred by Civil Procedure Code and no provision is made for a particular set of facts, the Courts ought to apply the provisions which are nearest in point with such modifications as may be necessary not refusing relief on the ground that the Legislature has not in terms made provision for a particular case. The object of S. 151 is to give such power to Courts and to prevent a failure of justice.”
16. In order to prevent failure of justice, a direction enabling the revision petitioners to execute the decree on behalf of all the decree-holders has therefore to be granted.
17. On behalf of the contesting respondents it is argued that there has been a mergor of the rights of the transferor decree-holders in favour of the transferee-judgment debtors and the decree to that extent is extinguished disabling the non-transferor decree-holders from getting delivery of actual possession. Apart from Khelat Chandra's case (supra) relied on by counsel, our attention is also drawn to the Full Bench decision of the Travancore-Cochin High Court reported in Ahamed v. Kochummini (1956 KLT 165). The Full Bench was considering the applicability of the Rule 16 of Order 21. It was held that when a transfer of a decree to one of the judgment-debtors is made, the doctrine of merger applies. 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. It was further held that when on account of the operation doctrine of merger a decree is extinguished in whole or in Page: 548part, to the extent of the extinction there will be no decree and the question of such extinction can therefore be considered by the executing court. It is also observed that the above principles would render it competent for the executing court to hold the decree inexecutable to the extent of the share of the transferee decree-holder and allow execution of the remaining part of the decree. While holding so, the Full Bench had relied on two earlier Division Bench decisions of the same High Court reported in Kumara Pillai v. Kurian Ouseph (AIR 1952 T.C 292) and in Mamman v. Geevarghese (AIR 1952 T.C 487). It has to be noted that in all these cases the decree was for realisation of money either on the strength of a simple mortgage or otherwise. In the case of a transfer of a money decree, the second proviso to Rule 16 of Order 21 directly comes into operation. It maybe contended that a decree for sale or redemption of mortgage stands on a different footing and the second proviso to Rule 16 is not applicable to such cases. As held by the Calcutta High Court in C.K Besbarua v. Golok Chandra (AIR 1939 Calcutta 425) the phrase “decree for payment of money” occurring in the second proviso to Rule 16 of Order 21 may not include a decree for sale passed in a mortgage suit. Still it was held therein that there is no bar in one of the judgment debtors who had obtained assignment of the decree in his favour proceeding with the execution against the other judgment-debtors whose properties were held liable to be sold in execution of the decree.
18. The Bombay High Court in Valchand v. Manekbai (AIR 1953 Bombay 137) held that in a case where the decree which is sought to be executed is a joint decree, the judgment-debtors must render satisfaction to the whole body of the decree-holders. In other words, Rule 15 of order 21 does not contemplate splitting up of a joint decree into one in favour of individual decree-holders in respect of their own shares. Such a procedure would mean permitting an executing court to go behind the decree and ascertaining the respective shares of the decree holders in a joint decree which is foreign to the nature of execution proceedings. In short, the decree can be executed as a whole and none of the decree-holders can be permitted to execute the decree in part.
19. A contention is raised that the transferee-judgment debtors are co-sharers along with the other decreeholders and the possession of the co-sharer cannot be disturbed except by way of a decree for partition. Reliance is placed on the decision in Asghar Ali…Defendant- v. Govind Lal…Plaintiff-. (AIR 1964 Allahabad 195). There it was held that where a co-sharer has been in the enjoyment of the right of exclusive possession of joint property vis-a-vis the other co-sharers and is dispossessed by another co-sharer, he is entitled to be put back into exclusive possession. The fact that the tenant in that case dispossessed the co-sharer in exclusive possession and subsequently acquired the rights of a co-sharer will not preclude the dispossessed co-sharer from claiming his right to execlusive possession.
20. The transferee-judgment debtor cannot be equated with a co-sharer entitled to be in possession along with the other joint decree-holders. What has been purchased is only a part of the right granted under the decree. By such purchase the transferee judgment debtor steps into the shoes of transferor decree-holder. As a transferee he can enforce whatever rights the transferor decree-holder had. The transferor could have executed the decree on behalf of the other decree-holders. The transferee judgment-debtor is also given such a right under Rule 16 of Order 21. He cannot therefore be considered to be a co-sharer in exclusive possession but has to be considered as one of the joint decree-holders. With respect, we disagree with the views expressed by the Allahabad High Court in Asghar Ali's case (supra).
21. The executing court has lost sight of a material aspect while denying the revision petitioners the relief of actual delivery of possession on behalf of all the decree-holders. What has been transferred is only the rights of some of the decree-holders in favour of some of the judgment-debtors in respect of some of the properties. All the judgment-debtors are in possession of the properties directed to be recovered, namely items 1 to 3 and 6 and 7 of the plaint schedule. In execution of the decree recovery of all the properties is sought by revision petitioners. Admittedly, the properties are in the joint possession of the judgment-debtors. If only symbolic delivery is allowed to be given to the revision petitioners that may lead to an anomalous position where the remaining judgment-debtors will continue in possession of the properties along with the transferee judgment-debtors. Can they be permitted to continue in possession in spite of the decree? According to us they cannot, since they are liable to surrender possession to the decree-holders. Can there be a symbolic delivery in respect of some of the judgment-debtors and physical delivery in respect of others? That also is not possible. In case symbolic delivery alone is allowed the revision petitioners will be driven not only to a suit for partition for separation of shares but also for recovery of possession of the properties from the nontransferee judgment-debtors who will continue in possession. They cannot be said to be in possession jointly along with the other judgment-debtors or the other decree holders. Having obtained a decree against all the judgment-debtors jointly, it will be unjust to ask some of the decree-holders to resort to another suit for recovery of possession. Under such circumstances, the Court has to apply the provisions of the Code which are nearest in point with such modifications in order to do justice to the parties and to prevent failure of justice. That can be achieved only if the decree is permitted to be executed against all the judgment-debtors which execution undoubtedly is on behalf of all the decree-holders including the judgment-debtors who obtained assignments of the rights of some of the decree-holders. Request having been made by revision petitioners for execution Page: 550of the decree on behalf of all the decree-holders, that request has to be granted in the circumstances.
22. An assignee from one of the decree-holders is entitled to get the assignment recognised by court and execute the decree on behalf of all the decree-holders including himself. As a joint decree-holder, the judgment debtor who obtained the rights of some of the, decree-holders could have executed the decree against all the judgment-debtors. In the present case some of the judgment-debtors admittedly are in possession of the properties which possession has to be recovered in execution of the decree in order to enable the decree-holders to get complete title over the properties. As observed earlier, symbolic delivery by itself will not serve the purpose. Having fought the litigation for a considerably long period of about 26 years by now, we are of the view that it will not be proper to deny the revision petitioners there right to get possession of the property along with the other decree-holders.
23. One more aspect was lost sight of by the executing court. There is no transfer simpliciter of the rights of some of the decree-holders in favour of some of the judgment-debtors in this case. There was a compromise between some of the decree-holders on the one hand and some of the judgment-debtors on title other by which the assignee-judgment debtors surrendered portion of item No. 3 and the transferor decree-holders assigned their rights over the remaining properties. We are at a loss to understand as to how the judgment-debtors were in a position to transfer a portion of item No. 3 by document No. 2560/82 at a time when they were liable to surrender the entire item along with items 1, 2, 6 and 7. At least regarding a portion of item No. 3 the assignee-judgment-debtors had not acquired any rights. That is all the more reason why we should permit the revision petitioners to execute the decree as a whole and obtain delivery of possession on behalf of all the decree-holders including the transferee-judgment debtors. In order to perfect the title of the parties and for a convenient enjoyment of the properties, such a course has to be adopted. We also feel it unjust to direct the revision petitioners to file, another suit for partition after getting symbolic delivery of possession. For the aforesaid reasons, the revision is allowed, the impugned order of the executing court is set aside and the execution petition is remanded to the executing court for effecting delivery of possession of the properties directed to be surrendered under the decree to the revision petitioners on behalf of all the decree-holders. We make it clear that the delivery of possession obtained by revision petitioners is on behalf, of the other decree-holders also including the transferees and that the delivery so effected should not in any way disturb the possession of the judgment-debtors who had obtained assignment of the rights of some of the decree-holders. In other words, the possession now exercised by some of the Page: 551judgment-debtors who had obtained assignment of the rights of some of the decree-holders would get itself converted into joint possession along with the revision petitioners and the possession in respect of the properties not so assigned also will be taken on behalf of all the decree-holders. No costs.
24. The records of the case shall be sent bade forthwith for effecting delivery of possession at an early date.
Order 21 Rule 35(2)