Babu Satyendra Narain and Others vs Wahiduddin Khan and Others

Harries, C.J.—This is a petition by decree-holders for revision of an order passed by the learned Munsif of Monghyr dismissing their application for execution. It appears that one Raja Prasad obtained a decree against the opposite parties. According to the petitioners, Raja Prasad was a benamidar for them and that the decree was really held by them. Raja Prasad died and so did the father of the present petitioners. After the death of these two persons, application was made by the petitioners when they attained majority to execute the decree held in the name of Raja Prasad, the deceased.

The learned Munsif came to the conclusion that the petitioners were not entitled in law to execute this decree, and dismissed the application. It has been argued by Mr. Janak Kishore on behalf of. the petitioners that the latter are entitled'' to execute the decree because they are in-, fact the decree-holders. The term "decree-holder" is defined in Section 2(3), Civil P.C. According to that Sub-section, "decree-holder" means any person in whose favour a decree had been passed or an order capable of execution has been made. Undoubtedly in this case the decree was passed in favour of Raja Prasad, and be was, until his death, undoubtedly the decree-holder. On his death his rights, whatever they were, devolved upon his heirs or personal representative. Even if Raja Prasad was merely a benamidar for the petitioners, the petitioners cannot be regarded as decree-holders within the meaning of that term as used in the Civil Procedure Code. Order 21, Rule 10, Civil P. O, deals with execution by the holder of a decree. The decree-holder must

apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

This rule is confined to holders of a decree, and in my view, there is no difference between the holder of a decree and a decree-holder. The holder of a decree under Order 21, Rule 10 must be a person in whose favour a decree has been passed. Order 21, Rule 16, Civil P.C., also deals with the persons who may execute a decree. It provides that

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...in the same manner and subject to the same conditions as if the application were made by such decree-holder.

These are the only two rules dealing with who may execute a decree. Quite clearly the present petitioners do not come within either of the rules. They are not decree-holders within the meaning of that term. Neither are they transferees by assignment in writing or by operation of law. That being so, I cannot see how they can-apply for execution of this decree. The executing Court must, as a rule, take the decree as it finds it and can only execute it, if application is made by the decree-holder himself or by some person who is entitled under the Code to execute in the same manner as the decree-holder. There is no provision in the Code which allows a person to come forward and say that the decree-holder is a mere nonentity and that he (the applicant) is in substance and in fact the holder of the decree.

Mr. Janak Kishore has relied upon a number of Calcutta cases and they undoubtedly support his contention. However, it is clear the High Court at Calcutta has not been consistent and that there are decisions of that Court which go to show that only the decree-holder or a person coming within Order 21, Rule 16, Civil P.C., can execute W decree. In my view, however, it is unnecessary to consider these Calcutta cases, because we are bound by decisions of this Court. The earliest decision is the case in Ramsewak Lal v. Satrudhan Deo Sahai AIR (1927) Pat 170. In that case A obtained a decree against X and subsequently A executed a deed of release in favour of B, admitting therein that B was the beneficiary in the suit, A being his mere benamidar. In execution proceedings B made an application under Order 21, Rule 16, Civil P.C., to which no objection was raised by X, but on the decree having been transferred to another Court for execution, X made an objection that the decree obtained by A could not be executed by B, without a decree of assignment of the decree.

It was held that Order 21, Rule 16 required an assignment in writing or by operation of law and that release was not sufficient to give the real owner a right to execute the decree. It was further held that a real owner as such could not execute a decree obtained by the benamidar. This case is a strong authority against the contention of the present petitioners. The same view was taken by another Bench of this Court in Mohammad Anas v. Bhupendra Prasad AIR (1938) Pat 457. In that case Wort J. reviewed the authorities and came to the conclusion that a person, who claimed to be the true owner, could not apply to execute a decree which had been obtained by an alleged benamidar unless there had been an assignment of the decree in writing or by operation of law. Varma J. agreed with the view expressed by Wort J. The matter was again considered in the recent case in Ran Bahadur Singh v. Awadbeharl Prasad Singh AIR (1959) Pat 411.

In that case, it was held that the person appearing on the face of the decree as the decree-holder was entitled to execute the decree, unless some other person could show that he had taken the decree-holder''s place by an assignment of the decree or by operation of law, that is by death or succession or in some similar manner. It was further held that in execution proceedings it was not open to the judgment-debtor to assert that the real holder of the decree was any person other than the person named as decree-holder in the decree unless there had been a valid assignment or devolution by process of law.

The view of this Court is similar to that taken by the Madras High Court in Palniappa Chetti v. Subramania Chettair AIR (1925) Mad 701. In my view, this Bench is clearly bound by the cases of this Court, to which I have made reference, and accordingly it must be held that the petitioners in this case had no right to execute the decree. For the reasons given, I hold that this petition fails and would discharge the rule. In the circumstances of this case, I would make no order as to costs.

Fazl Ali, J.

I entirely agree.