Kuppuswami Ayyar, J.
1. The appellant is the assignee of the decree passed in O.S. No. 12 of 1931 on the file of the Court of the Subordinate Judge of Chittoor in favour of one Alamelumangamma for costs. She was the defendant in the suit which was filed by five plaintiffs, one of whom was Padmavallithayaramma (the fifth plaintiff). The decree was, passed on the 10th September, 1932. A sum of Rs. 1,766-9-10 was the taxed costs which was directed to be paid by the plaintiffs to the defendants. E.P. No. 81 of 1935 was filed against the fifth plaintiff Padmavallithayaramma alone for the sale of her house No. 14816 in Chittoor Town. The house was attached on 12th June, 1936 and was advertised for sale on 9th March, 1937. In the meanwhile on 22nd February, 1937, Padmavallithayaramma died and her husband Namberumal Chetti, her daughter Vatsala and her father P. Narasimhalu Chetti were brought on record as her legal representatives. Subsequently the decree was transferred to the original appellant herein who is now dead and whose husband has been brought on record as her legal representative.
2. It was contended that the assignment in favour of Amirthavallithayarammal was only benami for the estate of Padmavallithayarammal, one of the judgment-debtors in the suit and therefore the decree could not be executed against the other judgment-debtors. That was the plea set up by the other plaintiffs and their legal representatives. The lower Court found that it was so and dismissed the petition. Hence the appeal.
3. The only point for consideration is whether the assignment in favour of Amirthavallithayaramma was benami for the estate of the deceased Padmavallithayaramma and if so, is it not open to the appellant to take out execution of the decree.
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4. [His Lordship discussed the evidence and held:]
5. In these circumstances the learned Subordinate Judge was perfectly justified in drawing the inference that the assignment was got with funds belonging to Padmavallithayaramma's estate.
6. The next question for consideration is whether the execution petition is not maintainable. It is urged for the respondents that under the proviso to Order XXI, Rule 16, where a decree for payment of money passed against two or more persons has been transferred to one of them it shall not be executed against the others. In this case the decree had been passed against five plaintiffs and the decree according to the finding on the previous point has been transferred to the estate of one of them. The question for consideration is whether the expression 'one of them' could be taken to include the estate of one of them after the death of that person. I see no reason why it should not be so understood. The principle underlying the proviso 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 a merger of the two liabilities and the debt could not be enforced as against the others. It is the application of this principle that is sought to be enforced in this case by the respondents. The decision in Ma Hla Yon v. Maung Tun Yin (1935) 69 M.L.J. 868 has no application to the facts of this case as in that case the assignment had been made before the debtor sought to be proceeded against became liable for the debt as legal representative of the judgment-debtor. The right of the creditor devolved on the legal representative of the debt in his individual capacity and not as heir of the debtor. In this case the finding is that the legal representative of the debtor became entitled to the right of the creditor only by payment out of the estate of the debtor. The decision in Panachand v. Sundara Bai I.L.R.(1907) Bora. 308 also has no application because one of the debtors became entitled to the decree as heir of the original decree-holder and not by payment of any consideration out of the estate of which he was the representative. The decision in Asia Bibi v. Malikaziz Ahmed I.L.R. (1931) All. 448 was a converse case of the decree-holder becoming the heir of one of the judgment-debtors and as such liable to discharge the decree-debt. The decision in Mohamed Abdul Khadir Sahib v. Syed Abdul Khadir : AIR1926Mad1141 relied on was overruled by a Bench of this Court in Subramaniam Chetti v. Kasi Chetti A.I.R. 1939 Rang. 82 as pointed out by another Bench of this Court in Sankwralingam v. Arumugam I.L.R.(1907) Bora 308. With regard to the question of rateable distribution under Section 73, it was pointed out that there was no difference between a decree obtained against a person and that obtained against the legal representative of that person because in both cases the estate which was liable for the debt was the same. Similarly in this case since the estate for which the assignment had been obtained benami was the estate of the original judgment-debtor, the proviso to Order XXI, Rule 16 would apply.
7. In the result the appeal is dismissed with costs.