P. Govindan Nair, J.
1. This is an appeal arising from an order passed in execution purporting to apply the second proviso to Rule 16 of Order 21 of the Code of Civil Procedure,
2. The appellants are the heirs of one Govinda Pillai and one of the judgment-debtors is his wife the seventh defendant in the case. This Govinda Pillai had taken an assignment of the decree. The decree was on the basis of a hypothecation bond and directed the payment of money by defendants 3 to 21 and was also charged on the hypotheca which was scheduled to the plaint. When the said Govinda Pillai took out execution, it was contended by some of the judgment-debtors that the assignment of the decree taken by Govinda Pillai was benami for his wife the 7th defendant in the case and that in view of the second proviso to Rule 16 of Order 21, the decree has become incapable of execution. It is this contention that has been accepted by the Court below which by its order under appeal dismissed the Execution Petition.
3. The question to be decided is whether in the case of a decree passed against some of the defendants and also against the properties scheduled to the plaint the application of the second proviso to Rule 16 of Order 21 will preclude an assignee decree-holder from executing the entire decree. Rule 16 of Order 21 is in these terms:
'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 condition 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 beer transferred to one of them, it shall not be executed against the others.'
4. It appears to me that the proviso will have application only in the case of a decree for payment of money against two or more persons. If the decree is of a simple nature in that it has provided only for payment of money against two or more persons there is no difficulty at all in applying the proviso. In the case of such a decree an assignment of the decree in favour of one of the judgment-debars will entitle the other judgment debtors to say that the decree shall not be executed. This is so is not disputed. But it is contended by counsel for the appellant that when the decree is also charged on immovable property as in this case even if the proviso applies, it will have effect only so far as the right of the decree-holder, to take out personal execution against the judgment-debtors and so far as the share in the hypotheca of the defendant who has taken the assignment of the decree. The respondents are not represented and I therefore requested Mr. N. K. Var-key to assist me as amicos curiae and I am grateful to him for placing before me two decisions of the Travancore High Court where this point has been dealt with. These rulings are reported in 17 Trav U (SN) 170 and in 16 Trav LJ 266. The later decision followed the earlier one wherein it has been held:
'Where one of the defendants obtained an assignment of the decree benami in the name of the appellant, the other defendants can claim immunity only to the extent of their personal liability; but in so far as the decree charges the amount of the debt on the hypotheca, it is not a decree for money against them and no plea is available to them. The decree is therefore executable against the hypotheca, under Section 225, proviso (b), C. P. C.' This case, followed a decision of the Madras High Court reported in Rajarathna Naidu v. Ramachandra Naidu, AIR 1924 Mad 901 (1). No decision of any Court taking a different view has been placed before me. I therefore hold that the decree in this 'case cannot be executed personally against any of the defendants against whom it has been passed. As far as the hypotheca is concerned the 7th defendant is entitled to a share in the hypotheca. So far as that share is concerned, there is a merger and therefore an extinguishment of part of the decree. The 7th defendant's share in the hypotheca is admittedly 1/5th. The consequence is that the decree is now. capable of execution only as regards 4/5th. This part of the decree may be executed against the hypotheca and I order accordingly. I therefore allow this appeal and remit the case back to the Court below which will deal with the E. P. in the light of the observations made above.
5. There will be no order as to costs in thisappeal.