ORDER
S.K. Mahajan, J.
1. On 14th July, 1977 a decree for Rs. 69,577.61 paise with proportionate costs was passed in favour of the decree holder and against all the judgment debtors. The decree holder was also granted interest on the principal amount of Rs. 50,077.61 paise @ 6% per annum from the date of the decree till realisation. The decree holder filed execution of the decree on January 9, 1978. She expired on March 14, 1980. It appears that the decree holder had executed a Will assigning the decree in favour of judgment debtors 2 and 3. Probate of the Will was granted by the Court of the Dis-
trict Judge on 12th February, 1987. Judgment debtor No. 4 also expired on 20th March, 1990. Judgment debtors 2 and 3 are now seeking to execute the decree against the legal heirs of judgment debtor No. 4. The legal heirs of judgment debtor No.4 have objected to the execution of the decree against them and have submitted that the decree cannot be executed by judgment debtors 2 and 3 on the basis of the Probate granted in their favour by the Court of the District Judge, Delhi.
2. The short question involved in this case is whether the applicants who were also the judgment debtors can execute the decree against one or the other judgment debtors even assuming the share of the decree holder has devolved upon them under the will.
3. Mr. Gopal Narain Aggarwal, learned counsel for the legal heirs of judgment debtor No. 4 has contended that under Order XXI Rule 16 CPC where the decree is for payment of money against two or more persons and interest of the decree holder has been transferred to one of the judgment debtors, the decree shall not be executed against others. He, herefore, submits that even assuming that the judgment debtors 2 and 3 have been granted Probate of the Will eecuted by the decree holder, they have no right to execute the decree against the legal heirs of judgment debtor No.4 as they
themselves were judgment debtors. Order XXI, Rule 16 of the Code reads as under:-
“Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree holder.
Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment debtor, and the ecree shall not be executed until the Court has heard their objections (if any) to its execution;
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.
[Explanation : Nothing in this rule shall affect the provisions of section 146, and a transferee of rights in the property, which
is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.]”
4. A plain reading of Order XXI, Rule 16 CPC supports the contention of Mr. Aggarwal that where the interest of the decree holder has been assigned or transferred to one of the judgment debtors, the decree cannot be executed against other judgment debtors. Mr. Kaul, learned Senior counsel, appearing for the decree holder, however, submits that there is an explanation in Order XXI, Rule 16 CPC according to which the provisions of Section 146 of the Code have not been affected and a transferee of rights in the property, which is the subject-matter of the suit, can apply for execution of the decree even if he had no right to execute the same under Order XXI Rule 16 CPC. To appreciate the contentions of Mr. Kaul, one has to read
Section 146 of the Code, which is as under:-
“Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him”.
5. Mr. Kaul has relied upon the judgments reported as Om Prakash Vs.
Madan Gopal Gupta and Others, ; Padmanabhan Pillai
and Another Vs. Sulaiman Kunju Ahamed Koya and Others, ;
and Maina Devi Vs. Jaswant Singh, .
6. According to Rule 16 of Order XXI CPC, a decree can be transferred either by assignment in writing or by operation of law and transferee in either case can apply for execution of the decree to the Court which passed it in the same manner as the decree holder; provided 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 others. Explanation to Rule 16 says that nothing in that Rule shall affect the provisions of Section 146 and a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by law. Explanation to Rule 16 does not in any way affect the proviso to Rule 16 CPC which bars the execution of the decree by one of the judgment debtors, in whose favour decree has been assigned, against other judgment debtors. All that the explanation means is that in case the rights in the property itself have been transferred, the transferee ay apply for execution of the decree without a separate assignment of decree as required by Rule 16 CPC and nothing in that Rule shall affect the provisions of Section 146 of the Code. According to Section 146 of the Code what can be done by or against
any person under the Code can be done by or against any person claiming under him. Section 146 does not in any way removes the bar created by the proviso to Rule 16 of Order XXI CPC that a decree when transferred to one of the judgment debtors shall not be executed against the others. It is not understood as to how the provisions of Section 146 of the Code in any manner help the applicants.
7. It is contended by Mr. Kaul that the applicants who were judgment debtors 2 and 3 are now claiming under the decree holder by virtue of the Probate granted in their favour and, therefore, they can execute the decree against the legal heirs of judgment debtor No.4 notwithstanding a bar in Rule 16 of Order XXI CPC. I am afraid, I cannot subscribe to the contentions of Mr. Kaul. When there is a specific bar in Rule 16 of Order XXI CPC against execution of a decree by one of the judgment debtors, to whom the decree has been transferred, against other judgment debtors, in my view, the applicants cannot take assistance from Rule 146 which does not in any way removes the bar created by Rule 16. It will not make any difference whether the decree is transferred by assignment in writing or by operation of law or by way of a will. Effect of all this is the same.
8. A decree when passed against more than one judgment debtors can be executed against them jointly and severally unless specifically mentioned in the decree as to how it will be executed. A judgment debtor against whom the decree can be executed is in the same footing as the other judgment debtor and the moment the decree is transferred in favour of one of the judgment debtors, there is a merger of the two and the decree automatically stands satisfied. It cannot then be executed against the other judgment debtors.
9. In a judgment reported as Parasu Amritavalli Thayaramma and Another Vs. Challuru Annapoornamma and Others, AIR 1943 Madras 641, it was held that the principle underlying the proviso to Order XXI Rule 16 is the doctrine of merger. Where a person happens to be a judgment debtor and is jointly and severally liable in respect of the debt and where the right of the creditor itself devolves either by operation of law or by transfer inter vivos on that particular person, then there is merger of the two liabilities and the debt cannot be enforced as against the others. The expression “one of them” in the proviso to Order XXI Rule 16 includes the estate of one of them after his death. Consequently, where one of the judgment debtors against whom a decree for money has been passed dies and the decree is assigned to a person benami for the estate of the deceased judgment debtor the bar of Order XXI Rule 16 proviso applies and the decree cannot be executed against the other judgment debtors. In my view, the principle laid down by the Madras High Court in this judgment fully applies to the facts of the present case. The decisions cited by Mr. Kaul, in my
view, have no applicability as they have not dealt with the question involved in the present case.
10. In view of the above, I am of the opinion that the applicants/judgment debtors 2 and 3 will have no right to execute the decree against the other judgment debtors including the legal heirs of judgment debtor No. 4. All the aforesaid applications as well as the execution petition stands dismissed, accordingly.