Straight, J. and Mahmood, J.:— The following pedigree will show the relative position of the various persons to whom reference will be made in stating the facts of the case:—

Banarsi Das, Nand Kishore and Chatar Bhuj brought a suit against Baldeo Prasad, Madhuri Prasad, Badri Prasad, Brij Kishore, Moti Ram and Ram Gopal. The suit was dismissed on the 22nd July, 1878, and the plaintiff's were ordered to pay one set of costs to the defendants. Subsequently Baldeo Prasad died, and Brij Kishore brought a suit against the rest of the members of the family for the ascertainment and separation of his individual share in the family property. Among the subjects of the suit was the money due on the decree of 22nd July, 1878. The suit was partially decreed on the 28th May, 1881, and among the items in respect of which the claim was dismissed was the money due on the decree of 22nd July, 1878.

On the 20th July, 1881, Kedar Nath, the son of Madhuri Prasad, one of the original holders of the decree of 22nd July, 1878, filed the present application for execution of the decree to the extent of Rs. 611-11-9, stating that sum to be the amount of his share in the decretal money due by the judgment-debtors Banarsi Das, Nand Kishore and Chatar Bhuj. Before the execution was ordered by the Court, Kedar Nath died and his widow Maharani and his adopted son, Shib Shankar, were substituted as applicants.

The judgment-debtors objected to the execution of the decree, and urged, inter alia, that the decree being a joint decree could not be executed for a portion of the decretal money; that by virtue of inheritance from Baldeo Prasad the judgment-debtors themselves had acquired the position of joint decree-holders; that the shares of the various joint decree-holders could not be determined in the course of the execution proceedings; and that the decree was therefore no longer capable of execution. The Sub-ordinate Judge disallowed these objections on the ground that the judgment in the suit of Brij Kishore had determined the respective shares of the various members of the family, and that the decree of 22nd July, 1878, being the joint property of the family, could be separately executed in part by the members of the family in proportion to their respective shares. The Sub-ordinate Judge accordingly ordered execution to proceed in respect of the share said to belong to the applicants.

The present appeal has been preferred by the judgment-debtors, and their contention in the lower Court is repeated in the grounds of appeal before us.

It is admitted by the learned pleader for the respondents that the effect of Baldeo Prasad's death was to place his sons the judgment-debtors in the position of joint judgment-creditors under the decree of 22nd July, 1878, sought to be executed. The learned pleader further concedes that, if the judgment-debtors were the only representatives of the original decree-holders, the decree would have been completely extinguished on the principle of merger, that is to say, by the union in the same persons of the character of debtor and creditor. But he contends that the judgment-debtors not being the only representatives of the decree-holders, the mere circumstance of their having acquired a joint interest in the decree cannot have the effect of extinguishing it in toto, or of rendering it incapable of execution; that the judgment in the suit of Brij Kishore conclusively determined the shares of she various members of the family; that even if such were not the case the shares of the various joint decree-holders could be determined in the execution proceedings, since the facts whereupon such determination depends are apparent from the relationship of the various persons interested in the decree; and that the Sub-ordinate Judge was therefore right in ordering execution to be taken out by the present applicants in respect of their own share in the decree.

Before entering into the main questions in this case we consider it necessary to express our opinion that the decree in the suit of Brij Kishore cannot benefit the respondents' case. It was passed in a suit in which Brij Kishore alone was the plaintiff and the rest of the members of the family were arrayed as co-defendants. There could therefore be no conclusive adjudication in that suit in regard to the shares of the various co-defendants inter se, and the decision in that case therefore has no bearing upon the present case.

The decision of this appeal however depends mainly upon the determination of the following points:—

(i). Whether a joint decree can be executed by one of the joint decree-holders in respect only of his own share in the decree;

(ii). Whether when by operation of law the judgment-debtors acquire the position of joint judgment-creditors, the decree can be executed against them by the other joint decree-holders?

It has been held by this Court in the case of Ram Autar v. Ajudhia Singh , which was followed in the case of The Collector of Shahjahanpur v. Surjan Singh , that execution of a joint decree cannot be taken out in part, and that when all the decree-holders do not join in applying for execution, any one or more of them can take out execution in respect of the decree for the benefit of all the decree-holders, under the pro visions of s. 231 of the Civil Procedure Code. The same was the rule adopted in many other cases (cited at the foot-note to page 232 of vol. 1, Allahabad Series, I.L.R,) under the old Civil procedure Cole, and the reason of the rule has been well stated by Peacock, C.J, in the case of Horo Sanker Sandyal v. Tarak Chandra Bhattacharjee . “Suppose there was a decree for a lac of rupees, it could not be contended that the decree-holder could assign it to a lac of assignees, so as to give to each of them power to take out execution for one rupee, his portion of it. Otherwise there might, be a lac of execution under the decree, a lac of seizures and a lac of sales, under each one of which there can be no doubt that the judgment-debtor would suffer loss. If this were allowed, the judgment-debtor must necessarily be ruined. This is shown to be the correct view……by supposing a case of execution by arresting the judgment-debtor. Could each one of the assignees arrest the debtor for his own portion? It appears to me that the section which provides the period, during which a judgment-debtor is to be detained in jail in execution of a decree, shows that the Legislature contemplated one entire execution, and not several executions as to portions of the same decree.” In our judgment these reasons, so, far as the point under consideration is concerned, are as much applicable to ss. 231 and 232 of the present Civil Procedure Code as they were to the provisions of the corresponding ss. 207 and 208 of the old Code Act VIII of 1859, and we have no hesitation in holding that the application for execution from which this appeal has arisen was illegal. Execution of the decree could therefore have been applied for only in respect of the whole of it, that is to say, including not only the shares of the other joint judgment-creditors, but ex hypothesi in respect also of the share which admittedly belongs to the judgment-debtors themselves.

That a decree should be executed against persons who have themselves acquired rights in it is a result the law does not contemplate, and the anomaly thus suggested brings us to the consideration of the second question in appeal. That question does not appear to have been the subject of many rulings, and we have been able to find only two cases bearing upon the point in the published reports. In the case of Wise v. Abdool Ali Loch and Macpherson, JJ., held that “even if it should appear that the principal defendant has (as one of the representatives of his son) an interest as one of the decree-holders, that fact will not bar execution being issued by other decree-holders according to such rights as they may be able to prove.” Again, in the case of Pogose v. Fukurooddeen Mahomed Ahsan Jackson and McDonell, JJ., observed:—“We considered for a moment whether it was possible to make any distinction between the capacity in which Azim Chowdhry was the judgment-debtor and that in which he became one of the decree-holders as representing his deceased wife; but it appears to us that the consequence as regards that share in the decree is the same as it would have been if he had purchased the whole or a part. We think the effect of inheritance as to a part or as to the whole is the extinction of the decree pro tanto.” The reports of both these cases, however, are so meagre, that the facts and the exact nature of the decrees do not clearly appear, and the judgments do not explain the reasons for the conclusions at which the learned Judges arrived.

In our opinion the question is not altogether free from difficulty, as it is not expressly provided for by the Code. Whilst in a matter of this kind we are bound to consider the language of the Civil Procedure Code, 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 considerations as will render the application of those rules consistent with equity and substantive law. We are fortified in this view by the precedent of a Full Bench of the Calcutta High Court in the case of Degumburee Dabee and Soroop Chunder Hazrah in which Peacock, C.J, with the concurrence of his colleagues, controlled the language of the statute (s. 208, Act VIII of 1859) by the principles of equity, and held that one of several judgment-debtors, who satisfied the judgment-debt by taking an assignment thereof, could not enforce it by execution against his co-debtors, and that his only remedy was to sue them to pay him their shares of the amount for which the decree had been purchased, having regard to the proportion in which they were bound, Inter se, to satisfy the original decree. This rule was followed by this Court in the case of Khoshalee v. Nund Lall and has since been adopted by the Legislature in the last proviso to s. 232, Civil Procedure Code. The principle upon which the rule is based seems to be that when one of the persons jointly liable under a decree unites in himself the characters of creditor and joint debtor in respect of the whole decretal debt, the effect is to extinguish the liability of all the co-judgment-debtors under the decree. But in the present case the judgment-debtors have not Required the entire rights of the decree-holder but only a share in such rights, and the question before us is whether this circumstance has the effect of rendering this decree incapable of execution.

We are of opinion that such cannot be the case. No doubt there may be joint fights as much as joint obligations, and it may be laid down that the performance of the entire obligation by anyone or more of several persons jointly liable under it extinguishes the liability of all so far as that obligation is concerned. It is an equally well recognized rule that an obligation in favour of several persons jointly, i.e, a joint right, is extinguished by full performance rendered to any one of such joint holders of the right. And these principles are wide enough to include cases in which the performance of the obligation consists of delivery of money, i.e, payment. The provisions of the last proviso to s. 232, Civil Procedure Code which prohibits the execution of a money-decree purchased by one of the joint judgment-debtors, and the provisions of s. 231, Civil Procedure Code, which permits one of several joint decree-holders to take out execution in respect of the entire decretal money, seem to be based upon the principles we have thus enunciated. But it is clear that, in either case, before a liability to pay money can be extinguished (if no other form of performance has been accepted as a substitute), full payment must have been made in discharge the obligation, whether on the one hand such payment is made by one of the joint judgment-debtors, or, on the other hand, such payment is received by one of the joint creditors.

We are prepared to hold that, when on account of death a creditor becomes heir to a debtor or a debtor becomes heir to a creditor, and thus the two opposite characters of debtor and creditor become united in the same person, the obligation to pay money may be regarded as extinguished. But this rule, even though applied in its full scope to judgment-creditors and judgment-debtors, falls short of showing that when the debtor inherits the rights of only one of his joint creditors the effect is to extinguish the entire judgment-debt. The rule, no doubt, owes ifs origin to the confusio of the Roman Law. Domat has stated the rule in these terms:—“if the creditor succeeds as heir to him who was surety for his debtor, or the surety succeeds to the creditor, the obligation of the surety is annulled; but the debtor, nevertheless remains still obliged. For the surety's obligation, which is extinguished by this change, was only necessary to the principal obligation. And if there were more debtors or more creditors, for one and the same sum, and if one of the debtors should succeed to one of the creditors, or one of the creditors to one of the debtors, the confusion which would be made in the person of the said heir, being limited to one portion of the debt, would make no manner of change with respect to the others.”—Civ. Law, s. 2263).

Applying these principles to the present case, we are of opinion that the effect of the death of Baldeo Prasad was to extinguish only so much of the money-decree as devolved by inheritance upon big sons the judgment-debtors themselves. But so far as the remainder of the decree is concerned, they are as much liable now as they would have been if they had purchased or paid up the proportion of the decree which has devolved upon them by inheritance; and we hold that the decree, to the extent of the balance, is still capable of execution against them. We are supported in this view by two recent precedents of the Calcutta High Court, which, by analogy, are applicable to this case, in the case of Brojeswary Chowdhranee v. Tripoora Soonderee Debi in which one of two joint decree-holders, admitting that she had realized, out of Court more than half of the decretal money, did not join in the application for execution, the Court directed execution to issue for the remaining half share of the other decree-holder. Again, in the case of Bebee Budhun v. Hafezah it was held that no joint decree-holder was competent to obtain satisfaction of the whole joint decree out of Court, and that the other joint decree-holders were entitled to proceed with execution of the decree for the amount of their share, as for the whole decree, after giving credit to the judgment-debtors for a part-payment amounting to the share of the joint decree-holders who bad already been satisfied.

The views we have expressed on the second point are in no way inconsistent with our opinion on the first point in appeal. We have declared the application for execution to be illegal, because it relates only to the alleged share of the applicants and does not seek execution in respect of the entire unextinguished portion of the decree. There is no provision of law by which the. Court, in the course of execution proceedings, can determine the shires of the various joint decree-holders inter se, but there can be no such difficulty in ascertaining the extent to which the decree has been extinguished owing to the death of Baldeo Prasad and inheritance from him by the judgment-debtors, who in the execution proceedings are naturally arrayed against all the others sharers in the decree. The application for execution should have been made as for the whole decree after crediting the judgment-debtors to the extent of the share in it which has devolved upon them by inheritance and which has thus become extinguished.

For the reasons we reverse the order of the lower Court and decree the appeal with costs.

Appeal allowed.