M.N. Shukla, J.
1. This appeal arises out of proceedings under Order 21, Rule 16, Civil Procedure Code in an execution case.
2. The brief facts are that the Banaras Electric Light and Power Supply Co., Ltd., Banaras obtained a decree against the Parbati Hemp Bailing Press owned by a firm styled as Radhakrishna Shivadutta Rai in which Ram Kumar and Madan Gopal Gupta were the partners. The Electric Company put its decree in execution. The decree was, however, sold during the pendency of the execution on 28-4-1967 to Om Prakash appellant. He applied under Order 21, Rule 16, Civil Procedure Code for substitution of his name in place of the original decree-holder. The iudgment-debtors opposed the same and filed objections stating, inter alia, that Om Prakash was a man of no substance, that he did not have the capacity to purchase the decree on payment of Rs. 9,500/- to the original decree-holders, that the decree was actually purchased by Mahabir Prasad who was the grandson of Ram Kumar (one of the iudgment-debtors). It may be noted that during the pendency of the execution Ram Kumar died and his grandson Mahabir Prasad was substituted as his legal representative. It is also mentioned in the objections that Mahabir Prasad was on inimical terms with Madan Gopal Gupta (judgment-debtor) and so the former had really purchased the decree in order to harass Madan Gopal Gupta and others. It was further urged that the purchase by Mahabir Prasad as one of the judgment-debtors amounted to full satisfaction of the decree within the meaning of the second proviso to Rule 16, Order 21, C. P. C. and it could not be executed against the other judgment-debtors.
3. The parties adduced evidence and the Court below came to the conclusion that Om Prakash was not the real purchaser of the decree, the real purchaser was Mahabir Prasad who was a partner of the judgment-debtor firm. In that view of the matter it was held that the decree was not executable against the other partners of the firm and the application made by the appellant Om Prakash was not maintainable. The application was accordingly rejected.
4. Sri Rajeshwari Prasad, learned Counsel for the appellant, has placed reliance on the provisions of Rule 16, Order 21, Civil Procedure Code and contended that the appellant being an assignee of the decree-holder was entitled to the execution of the decree. He also assailed the finding of the court below that the appellant was a benamidar of Mahabir Prasad who was the real purchaser of the decree. The learned Counsel for the respondents has, on the other hand, relied on the second proviso to Rule 16, Order 21, Civil Procedure Code and submitted that the application of Om Prakash was not competent and the decree was not executable against the iudgment-debtors other than Mahabir Prasad. He also endeavoured to support the finding of the court below that Om Prakash was only an ostensible purchaser and that Mahabir Prasad was the real purchaser of the decree.
4-A. The learned Counsel for the appellant has canvassed a pure question of law relating to the interpretation of Order 21, Rule 16, Civil Procedure Code and if his contention is well founded, it would not be necessary to go into the question as to whether the appellant was the benamidar of Mahabir Prasad. Even if we proceed on the assumption that Om Prakash was the benamidar of Mahabir Prasad, the crucial question which must be determined is as to whether Mahabir Prasad can be regarded as a judgment-debtor so as to attract the application of the second proviso to Rule 16, Order 21, Civil Procedure Code.
5. The provisions of Order 21, Rule 16, Civil Procedure Code run asunder:
'16. Application for execution by transferee of decree. -- 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 decree 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 other.'
6. A perusal of the above Rule makes it clear that where a decree has been transferred by assignment or by operation of law to one of the several judgment-debtors, the transferee is entitled to execute the decree in the same manner as if the application were made by the decree-holder himself. This right of the transferee is, however, subject to the condition imposed by the second proviso. The effect of this proviso is that where a decree for payment of money has been transferred to one of the several judgment-debtors, the decree is wholly extinguished. The transferee cannot execute the decree against the other judgment-debtors and his appropriate remedy against them is by way of a regular suit for contribution as if the decree had been satisfied by him. The object of the 2nd proviso to the Rule is not to deprive the judgment-debtor transferee of all reliefs but to impose upon him a duty of proceeding by what was considered a more appropriate procedure, that is, a suit for contribution. The condition precedent to the applicability of the second proviso is that the transferee of the decree must be himself a judgment-debtor. In case he does not answer the description of a judgment-debtor in law, the other judgment-debtors cannot raise the plea that the decree is not executable. The second proviso to Rule 16, Order 21, Civil Procedure Code is really founded on 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 devolves itself either by operation of law or by transfer on that particular person, then there is a merger of the two liabilities and the debt cannot be enforced as against the others. But on the terms of the second proviso it is plain that it would not be applicable unless the transferee is a judgment-debtor.
7. In the instant case even though it may be assumed that Mahabir Prasad was the purchaser of the decree, it is not explained as to how he became the judgment-debtor. He is the grandson of Ram Kumar, one of the judgment-debtors and was substituted on the death of Ram Kumar during the pendency of the execution application in the year 1964. So he became a legal representative of the judgment-debtor but not a judgment-debtor. The learned Counsel for the respondents has not been able to place before us any material on record to prove that he became the judgment-debtor. In fact, in the very objections dated 24-2-1968 filed on behalf of the judgment-debtor there is no allegation that Mahabir Prasad became a partner in the judgment-debtor firm. All that is stated in paragraph 8 of the objections is:
'That Sri Mahabir Pd. Gupta who has been arrayed as one of the opposite parties in this case has taken over possession and control of all the business and properties of the old firm Radhakrishna Shivdutt Rai and has been manoeuvring for some time to humiliate this opposite party by all possible means.'
Thus, there is no allegation that he was a partner in the judgment-debtor firm and unless he was one of the partners in the firm, he could not acquire the character of a judgment-debtor.
8. Order 21, Rule 50 of the Code of Civil Procedure provides that the decree passed against a firm can be executed:--
'(a) against any property of the partnership:
(b) against any person who has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;
(c) against any person who has been individually served as a partner with a summons and has failed to appear.'
9. Order 30, Rule 6 of the Code of Civil Procedure provides;
'Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.'
10. Order 30, Rule 3 of the Code of Civil Procedure says:
'Where persons are sued as partners in the name of their firm, the summons shall be served either-
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within India, upon any person having at the time of services, the control or management of the partnership business there ............'
11. According to Order 30, Rule 7: 'Where a summons is served in the manner provided by Rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.'
12. Admittedly in the case before us Ram Kumar and Madan Gopal were the only two partners mentioned with regard to the firm Radhakrishna Shivadutta Rai which was sued. The decree was accordingly passed against the judgment-debtor firm consisting of the aforesaid two partners only and the decree could, therefore, be executed under Order 21, Rule. 50, Civil Procedure Code only against the property of the partnership or the partners of the firm who had appeared in the suit. It, therefore, follows that a person who was not a partner of the firm sued cannot be regarded as a judgment-debtor. As we have already mentioned, there is neither any allegation nor evidence to the effect that Mahabir Prasad, grandson of Ram Kumar, was a partner in the firm Radhakrishna Shiv-dutta Rai. The court below therefore, erroneously assumed that Mahabir Prasad was a partner in the judgment-debtors' firm. Its finding to that effect is not based on any evidence and is clearly illegal and must be set aside. It is evident that if Mahabir Prasad, assuming that he was the real purchaser of the decree, was not a judgment-debtor, the second proviso to Rule 16 of Order 21, Civil Procedure Code would not be attracted.
13. It was, however, contended by the counsel for the respondents that Mahabir Prasad was the grandson of Rani Kumar judgment-debtor and was substituted in his place on the latter's death during the pendency of the execution proceedings and therefore substantially he was in the position of a judgment-debtor for the purposes of the application of the second proviso to Rule 16 of Order 21, Civil Procedure Code. This argument is fallacious and untenable. An heir or legal representative of a judgment-debtor is surely a person on whom the liability is cast for satisfying the decree passed against the judgment-debtor but for that reason he cannot be identified with the judgment-debtor. He is in the eye of law an entity distinct from the judgment-debtor and therefore does not satisfy the condition of the second proviso. This distinction between a judgment-debtor and a legal representative is consistently maintained in the scheme of the Code of Civil Procedure. Thus, Section 50 of the Code says that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased but it is to be noted that where the decree is executed against such legal representative he shall be liable to the extent of the property of the deceased which has actually come to his hands He is thus not a judgment-debtor. The term 'judgment-debtor' has been defined in the Code of Civil Procedure as 'a person against whom a decree has been passed or an order capable of execution has been made.' 'Order' according to the definition in Section 2(14) of the Code of Civil Procedure means the formal expression of any decision of a Civil Court which is not a decree. We cannot accept the respondents' submission that an order passed in execution proceedings substituting Mahabir Prasad for the judgment-debtor Ram Kumar is an 'order' contemplated by the definition of the term judgment-debtor. The order must be the formal expression of any decision of a Civil Court. Order 22, Rule 12, Civil Procedure Code clearly provides:
'Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.'
Thus, the mere fact that Mahabir Prasad was brought on record as the legal representative of Ram Kumar in execution proceedings cannot possibly have the effect of making him a judgment-debtor in the case. The decree was against the firm and it could not operate as a decree against one who was not a partner in the firm. In other words, he could not become a joint debtor in view of the provisions of Rules 30 and 50, Order 21, Civil Procedure Code which we have alreadv noticed.
14. The learned Counsel for the respondents relied on a decision of the Madras High Court in Thavaramma v, Annapoornamma AIR 1943 Mad 641. In that case a decree for costs was sought to be executed against one of the five plaintiffs who died and her husband, daughter and father were brought on record as her legal representatives. Subsequently the decree was transferred to the assignee appellant. On facts it was found by the High Court in appeal that the assignment was obtained by the appellant with the funds of the estate of the plaintiff against whom execution was sought. In other words, it was found that the assignment in favour of the appellant was only benami for the estate of the aforesaid plaintiff. The other plaintiffs argued that in the circumstances the execution was not maintainable in view of the provisions of Order 21, Rule 16, Civil Procedure Code. According to the finding the decree had been passed against five plain-tiff's but had been transferred to the estate of one. It was held that the expression 'one of them' could be taken to include the estate of one of them after the death of that person. In the circumstances the High Court was of the view that since the assignment in favour of the appellant had been benami for the estate of the original judgment-debtor, the proviso to Order 21, Rule 16, Civil Procedure Code would apply. With respect we are unable to agree with the view expressed by the learned single Judge in that case. Moreover, the above case is clearly distinguishable on facts. It was not a case of a decree against a firm. In the case before us we are dealing with a decree passed against a firm with two partners, namely Ram Kumar and Mahabir Prasad. The judgment-debtor is the firm Radhakrishna Shiva-dutta Rai and the two partners thereof aforesaid. Here the other provisions of the Code of Civil Procedure to which we have already adverted eventually determine the application of the second proviso to Order 21, Rule 16.
15. We have already referred to the provisions of Section 50 of the Code of Civil Procedure which provides that where a judgment-debtor dies before a decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased and further such legal representative is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of. This implies that the legal representative does not become a judg-ment-debtor against whom a decree for payment of money has been passed on the basis of the principle underlying the provisions of Section 50 of the Code of Civil Procedure. It was held in Ma Hla Yon v. Maung Tun Yin, AIR 1939 Rang 82:
'Where a decree for money has been passed against two or more judgment-debtors and one of them dies, his legal representative does not become a judgment-debtor and certainly not a judgment-debtor against whom a decree for the payment of money has been Passed within the meaning of Order 21, Rule 16, proviso 2.' Hence, the conclusion was drawn: 'If the legal representative is interested in the decree as a transferee he is entitled to execute the decree against the rest of the judgment-debtors.'
16. This view is in accord with the decision of the Allahabad High Court in Asia Bibi v. Malik Azir Ahmed : AIR1932All704 . There the decree-holder had obtained a decree under Order 34, Rule 6, Civil Procedure Code against the heirs of the mortgagors and was entitled to recover the whole amount against the estate of the mortgagor in the hands of his heirs, including the decree-holder's husband, and the subsequent death of her husband only made her inherit a part of the share which the deceased husband got in the assets of the original mortgagor. On these facts it was held that this inheritance did not make her jointly and personally liable for the payment of the whole decree which she held, her right to execute the decree was not extinguished simply because she became an heir to one of the heirs of the original judgment-debtor but inasmuch as part of the assets of the original judgment-debtor became vested in her by operation of law, she was bound to give credit for a proportionate amount of the decree, and accordingly, the amount had to be reduced pro tanto.
17. The distinction between a mere legal representative and judgment-debtor has been consistently maintained and that is of paramount importance in applying the proviso to Order 21, Rule 16, Civil P. C. A Division Bench of Kerala High Court endorsed the same view in Sangameswara v. Krishna lyer : AIR1960Ker108 . It was held that even though a son may have a pious obligation to discharge the debt of his father, he does not become a judgment-debtor by virtue of his being an assignee pf the decree-holder. The law on the point was thus stated by Sankaran, C. J.:--
'The principle can have no application to a case where the assignee is a person who is not one of the judgment-debtors under the decree. The mere fact that he happens to be the son of the judgment-debtor, is not sufficient to place him in the category of persons against whom a decree for payment of money has been passed. There is no legal impediment in the son of a Hindu judgment-debtor taking an assignment of the decree and enforcing it against all the judgment-debtors including the father.'
18. In S. Mohd. Liaq v. Ramji : AIR1952All618 , Desai, J (as he then was) ruled that the word 'judgment-debtor' as used in Order 21, Rule 12 of the Code of Civil Procedure could not include a legal representative of a judgment-debtor, but meant the person against whom actually the decree was passed. Therefore an inventory of the property sought to be attached from the possession of the legal representatives was held to be necessary under the provisions of the rule The learned Judge rejected the argument that when a judgment-debtor died and his legal representative was brought on record, he also became a judgment-debtor.
19. To sum up, if a decree is transferred to a benamidar of one of the judgment-debtors, such assignee remains only a legal representative of the judg-ment-debtor: he does not become a judgment-debtor. Hence, the benamidar can execute the decree in the same manner as if the application were made by the decree-holder and the provisions of Order 21, Rule 16 Second Proviso of the Code of Civil Procedure will not apply.
20. Thus, we have no manner of doubt that Mahabir Prasad did not become a judgment-debtor, even though he may be a legal representative of the deceased judgment-debtor, Ram Kumar.
21. We, therefore, hold that the appellant is entitled to execute the decree against the respondents.
22. In the result this appeal is allowed with costs and the order of the court below is set aside. The Execution Case No. 3 of 1963 is restored and shall be disposed of in accordance with law.