Sudhi Ranjan Das, J.

1. This application for execution raises an interestingquestion. The facts leading up to the present application are not in disputeand may be shortly stated as follows:

2. In 1920, Jagannath, Krishnalal and Gossaindas, three ofthe defendants in this suit, conveyed a portion of the premises No. 13Maniktolla Road to the plaintiff. The premises in question was then in thepossession of a tenant named Peary Lall Mullick, defendant 1. In 1921 theplaintiffs instituted this suit against the tenant Peary Lall and the threevendors for possession of the premises. On 20th December 1923 a consent decreewas passed in this suit. By the terms of settlement embodied in the decree itwas provided that the defendants other than the defendant Peary Lall Mullick orany one of them will forthwith make over to the plaintiffs vacant possession ofthe premises in question. In 1927 the plaintiff Probodh died leaving a sonDhiren. In 1932 the plaintiff Khelat for himself and as certificated guardianof Dhiren applied for execution of the decree and obtained an order fordelivery of possession by the Sheriff. It does not appear that any further stepwas taken on that order. In 1937 the plaintiff Khelat died leaving a willwhereby and whereof he appointed Durgabati, Shyamchand and Gopal executrix andexecutors. Durgabati and Shyamchand obtained probate of Khelats will. In 1942Dhiren sold his fathers 1/2 share in the decree and the premises whichdevolved on him to Jagannath, one of the defendants. On 25th May 1943 Durgabatiand Shyamchand obtained leave to continue the execution proceedings.

3. The present application was initiated by Durgabati, andShamchand on a tabular statement filed on 2nd December 1943 and a notice underO. 21, R. 22(1)(a) and (b) was issued by the master. The defendant Krishnalalhaving died prior thereto the tabular statement and the notice were amended inJanuary 1944. The present application is directed against the defendantJagannath for self and as son and heir of the defendant Krishnalal sincedeceased and against the defendant Gossaindas in column 5 of the tabularstatement under the heading "whether any adjustment has been made betweenthe parties subsequent to the decree" has been set out the fact of thesale of the interest of the plaintiff Prabodh to the defendant Jagannath. Themode in which the assistance of the Court is required, as set out in column 10,is as follows:

We pray that possession of the said premises being No. 13ARamesh Dutt Street to the extent of the interest of the deceased plaintiffKhelat Chandra Roy being an undivided half share therein more particularlydescribed in the schedule hereto be given to us by the Sheriff and for suchdirection as to costs as to this Court may seem fit and proper.

4. The defendant Gossaindas has not appeared to oppose thisapplication. The defendant Jagannath has appeared and filed an affidavit inopposition. In para. 6, after reciting the sale of Probodhs share to him,Jagannath concludes as follows:

I have by reason of the said purchase become a co-sharerwith the plaintiff in respect of the said premises and I am in possessionthereof.

5. Mr. A.C. Mitra appearing for Jagannath has contended thatthe decree herein being for delivery of vacant possession, the execution canonly issue under O. 21, R. 35(1). By reason of the sale of Probodhs interestto Jagannath, Jagannath has the right to remain in possession in exercise ofthis new right and cannot be removed from the premises. The decree is for deliveryof vacant possession but there can be no delivery of vacant possession of anundivided half share. this Court as the Court executing the decree cannot gobehind the decree. The decree, as it stands, has, by reason of superveningevents, become incapable of execution. The proper remedy of the applicants isto file a substantive suit for partition.

6. It is now well established that where a decree forpayment of money has been, in its entirety, transferred by assignment or byoperation of law to one of the judgment-debtors, the decree is whollyextinguished and the transferee judgment-debtor cannot execute the decreeagainst the other judgment-debtors. (See O. 21 R. 16). It is equally wellestablished that where a decree for payment of money has been passed jointly infavour of two or more persons and the interest of any decree-holder in suchdecree has been transferred by assignment or by operation of law to one ofseveral judgment-debtors the decree is extinguished to the extent of theinterest so transferred and execution can only issue for the rest of thedecree: See Banarasi Das v. Maharani Kuar, 5 All. 27 : (1882 A.W.N. 140), whichhas been followed by this Court in Nagendra Nath Roy v. Haran Chandra Adhikary,: 37 C.W.N. 758 : (A.I.R. 1933 Cal. 865) [LQ/CalHC/1933/138] . The same principleof merger has been applied where a decree for possession of immovable propertyhas been passed jointly in favour of two or more persons and the interest ofany of the decree-holders has been transferred by assignment or by operation oflaw to one of the judgment-debtors: Shree Kudhai v. Sheo Dayal, 10 All. 570 :(1888 A.W.N. 231), relied on by Mr. S.N. Banerjee.

7. Mr. Mitra has not questioned the correctness of the aboveprinciples so far as decrees for payment of money are concerned but hascontended that there is practical difficulty in applying those principles to adecree for delivery of vacant possession of immovable property, for, aftertransfer to a judgment-debtor, the transferee judgment-debtor becomes a co-sharerwith the other plaintiff decree-holder and until partition is entitled toremain in possession of the whole premises. Vacant possession cannot be givenof an undivided share under O. 21 R. 35(1) and there is no provision in theCode for executing the decree after the happening of such event.

8. It appears to me there are several answers to Mr. Mitrascontention:

(i) Where the interest of any of the joint decree-holders ina decree for vacant or khas possession of immovable property is transferred toone of the judgment-debtors, either the decree is extinguished pro tanto bymerger or it is not. If no part of the decree is extinguished then there can beno difficulty in executing the whole decree for the benefit of the remainingdecree-holders and the transferee judgment-debtor by removing the otherjudgment-debtors from possession of the property under O. 21 R. 35(1). On theother hand if there be a partial merger, as in my judgment there must be, onthe authorities I have referred to, then the decree is extinguished pro tantoas regards the property and the result of such partial extinguishment asregards the property necessarily implies that thereafter the decree must beregarded as one for delivery of joint possession. In other words the transferof the interest of one of the joint decree-holders to one of thejudgment-debtors brings about a change in the subject-matter of the decree asalso in its character and incidents. It will be wrong to assume, as Mr. Mitrasargument does, that although the decree is extinguished to the extent of theinterest transferred, yet it remains as decree for delivery of vacant or khaspossession. If as the executing Court I am to take note of the change in thesubject-matter of the decree I ought not to overlook the necessary consequenceswhich must flow therefrom. In this view of the matter, the decree, as it nowstands, i.e. after the transfer of the interest of one of the decree-holders toone of the judgment-debtors, may well be regarded as one for joint possessionin favour of the remaining decree-holder and executed in the manner prescribedunder O. 21, R. 35(2) of the Code.

(ii) The second answer to Mr. Mitras argument appears to bethis: By virtue of the transfer the transferee judgment-debtor has becomeentitled to occupy the premises and as such transferee he is not bound by thedecree to relinquish such occupancy. Therefore the position appears to be thatthe applicants have a decree for the delivery of property in the occupancy of aperson entitled to occupy the same and not bound by the decree to relinquishsuch occupancy. In this view of the matter I see no impediment in the way ofexecuting the decree, as it now stands, in the manner prescribed by O. 21, R.36 of the Code.

(iii) If it be held that neither O. 21, R. 35 nor O. 21, R.36, in terms applies to this decree in the circumstances that have happened, Ido not see why the executing Court should not proceed under cl. (e) of S. 61 ofthe Code and execute the decree in such manner as the altered nature of thedecree may require, namely, by directing delivery of symbolical possession.

(iv) Mr. Mitras argument that in the present circumstance,the only remedy of the applicants is to sue for partition completely overlooksthe existence of the other judgment-debtor Gossaindas. A fresh suit forpossession, as against that judgment-debtor will clearly be hit by theprovisions of S. 47 of the Code, There is no averment that that judgment-debtoris not also in possession of the property. Therefore as against him theapplicants must proceed by way of execution and the only mode of execution asagainst him now available to the applicants is by delivery of symbolicalpossession.

(v) Mr. Banerjee has argued that although the decreeentitles his clients to vacant possession there is nothing to prevent them fromwaiving that and asking for less and taking symbolical possession, I am not ofopinion that this argument is wholly without any substance.

(vi) To accede to Mr. Mitras argument will be to subscribeto the doctrine that a decree for possession can only be executed as a wholeand not partly by one of the plaintiffs-a doctrine, which, as pointed out bytheir Lordships of the Judicial Committee in Hurish Chander Chowdhury v. KaliSundari Debi, 9 Cal. 482 at p. 494 : (10 I.A. 4) would lead to the consequencethat a defendant could prevent the execution of a decree by buying the interestof one of the plaintiffs. Such a consequence cannot be permitted to occur if itcan be avoided. In my judgment such a consequence can be avoided in the presentcase by directing delivery of symbolical possession under O. 21, R. 35(2) or R.36 or S. 51(e) of the Code.

9. Mr. Banerjee at one stage of his argument urged that asthe matter was between the parties to the suit and the decree, this Courtshould, under S. 47 of the Code, in execution appoint a Commissioner topartition the property and thereafter deliver possession of a divided andseparated half share to the applicants. This was not very strenuously pressed andI express no opinion as to whether the adoption of such a course is permissiblein execution.

10. The result is that I accede to this application anddirect that the Sheriff do deliver possession in the manner prescribed fordelivery of symbolical possession. The applicants will have costs of thisapplication. Certified for counsel.

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Khelat Chandra Roy and Ors. vs. Peary Lal Mallick and Ors.(26.04.1944 - CALHC)