Kumara Pillai, J.
1. This second appeal relates to a matter in execution. The assignee decree-holder is the appellant. The decree sought to be executed was obtained on a hypothecation bond executed by the deceased Rama Varma Thampan who was the husband of defendant 1 and the father of defendants 2 to 7. An assignment of this decree was taken from the original decree holder by the husband of defendant 1 and when the assignee decree holder applied for execution defendant 7 contended inter alia that the assignment was taken benami for defendant 6 and should not therefore be recognised. This contention was upheld by the execution Court and the appeal which the assignee decree holder filed against the execution Court's order was dismissed by the lower appellate Court. The assignee decree holder has therefore filed this second appeal.
2. The reliance placed by the Courts below on Order XXI, Rule 16, C. P. C. is out of place for, as has been held in Anantha Narayana Iyer v. Gana-pathy Subbier, 1951 Ker LT 611: (AIR 1952 Trav. C 226) (A) and Anthony v. Krishnan, 1947 Trav. LR 603 (B), that rule applies only to simple money decree and not to assignments of mortgage or hypothecation decree. In this Court the respondent's counsel sought to support the orders of the Courts below on the basis of the doctrine of merger. The applicability of the doctrine of merger to cases of assignments in the case of mortgage and hypothecation decrees have been considered in Mamman Mathai v. Zacheria, 1952 Ker LT 322: (AIR 1952 Trav. C. 487 (C) & -Kochiappa Ahmed V. Kachum-mini, 1956 Ker LT 165: ((S> A I R 1956 Trav. C. 171) (D). In 1952 Ker LT 322; (AIR 1952 Trav, C. 487) (C) it has been held:
'When subsequent to a decree a portion of the rights to which the decree relates devolves either by inheritance or otherwise upon the judgment-debtor or is acquired, by him under a validtransfer, the decree does not become incapable of execution, but is extinguished pro tan to. A person cannot at one and the same time unite in himself two opposite characters. It is upon this principle that the doctrine of merger or confusio proceeds'.
and in 1958 Ker LT 165: ((S) AIR 1956 Trav. C. 171) (D) it has been held:
'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 the decree or after decree in proceedings in execution. 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. The above principles would render it competent for the executing Court in the present case to hold the decree unexecutable to the extent of the share of the second defendant in the estate of deceased debtor Pappu and allow execution of the remaining part of the decree''.)
In this case it is admitted that the deceasedRama Vanna Thampan had left seven heirs, namely,defendants 1 to 7. Since the right which defendant6 has in his estate is only 1/7, by the assignmentwhich has been taken benami for her by the assignee decree holder the decree can be treated asextinguished only to the extent of 1/7 and execution has to be allowed in regard to the remaining6/7.
3. For the reasons stated above I hold that the decree has been extinguished to the extent of 1/7 right thereunder by the assignment taken by the assignee decree-holder & that the assignee decree-holder has to be allowed to execute the decree to the remaining extent of 6/7. The orders of the Courts below are accordingly set aside and the assignee decree-holder is allowed to execute the decree to the extent of 6/7 rights thereunder. The second appeal is allowed to the above extent and dismissed in other respects. Parties will bear their costs in this Court. Order accordingly.