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Judgment
The facts of this case so far as it is necessary to state them for the purposes of this appeal are as follows. The Plaintiff is the purchaser of the equity of the redemption of one Sankar Persad in the mouzah of Purea Mahabut. He bought this equity of redemption at a sale held on the 9th February 1889 in execution of a money decree.
As set out in the judgment of lower Court, Sankar Persad, the mortgagor, had executed four mortgages of his properties in favour of (1) Juggernath Persad, (2) Ajodhya Persad, (3) Benares Sahai or Benarsi, and (4) Ajodhya Pershad.
In execution of a decree, dated 10th December 1887, obtained by Juggernath Persad on his mortgage, mouzah Purea Mahabut was sold on the nth January 1890 and realised more than enough to satisfy his decree. The surplus sale-proceeds amounted to Rs. 4,077-13.
Benarsi Sahai had also obtained a decree upon his mortgage, dated 9th November 1888. He sold his decree to the Defendant No. 2, Hurdwar Singh, who, on the 14th June 1890, applied under sec. 295 in the course of the execution of Juggernath''s decree for the payment to him of the surplus sale-proceeds and obtained an order for their payment to him.
Now, the Plaintiff has brought this suit to set aside that order and to recover their surplus sale-proceeds from the Defendant No. 2. He alleges that the Defendant No. 2 had no right to these sale-proceeds and further that he is the benamidar of the Defendant No. 1, the purchaser of a village named Komna, and that he acted in collusion with him with the view of exempting mouzah Komna from the burden of satisfying Sankar Persad''s mortgages.
The Subordinate Judge has held that the Defendant No. 2 was a benamidar for the Defendant No. 1, that the Plaintiff has made good his title to the surplus sale-proceeds and has given him a decree.
The Defendant No. 2 now appeals and on his behalf it is contended (1) that the assignment of the decree of Benares Sahai in favour of the Defendant No. 2 was not a benami one; (2) that, if it was, the decree should not have been given against the Defendant No. 2, but against the Defendant No. 1; (3) that the suit is not maintainable under sec. 244, C. P. C.; (4) that if it is, it is barred by limitation; (5) that it was for the Plaintiff to show" what proportion of the sale-proceeds is equitably chargeable on Purea Mahabut, and if, as found by the Subordinate Judge, the Plaintiff does not show that his suit should have been dismissed, and (6) that in any case the Plaintiff is not entitled to interest on the sum decreed.
With regard to the first of these grounds, we would say that we are not disposed to interfere with the finding of fact at which the Subordinate Judge has arrived. The direct evidence as to Hurdwar being the benamidar of Defendant No. 1, and as to the latter having purchased the decree of Banares Sahai is no doubt weak and discrepant, but in the circumstances of the case, as pointed out by the Subordinate Judge, it is difficult to resist the conclusion that Hurdwar really bought the decree of Benares merely as the benamidar of the Defendant No. 1.
The second plea of the Appellant cannot be gainsaid. If the Defendant No. 2 is the benamidar of the Defendant No. 1, the decree should have been given against the latter. The Plaintiff has filed cross-objections urging that a decree should have been given against the Defendant No. 1, but as the Defendant No. 1 is not the Appellant, the Plaintiffs'' cross-objections cannot be given effect to.
We further think that there is much force in the Appellant''s third plea and that the order by which the surplus sale-proceeds were awarded to Hurdwar was an order coming within sec. 244, and no suit can lie to set it aside. Hurdwar was the assignee of the decree-holder Benares Sahai. He is therefore his legal representative.
The Plaintiff is the purchaser of the equity of redemption of Sankar Persad, the judgment-debtor in the decree of Benares. He is therefore his legal representative, see Ishan Chunder Sirkar v. Beni Madhub Sirkar I. L. R. 24 Cal. 62. The question decided between Hurdwar and Sankar Persad in the proceeding under sec. 295 was a question relating to the execution of the former''s decree and was disposed of by the Court executing the decree. This is apparent from the concluding part of the Court''s order in the proceeding which directs that the surplus sale-proceeds be given to Hurdwar Singh so far as they will go to satisfy his decree.
The Respondent''s pleader contends that the sale-proceeds were realized in execution of the decree not of Benares but of Juggernath. This is true, but the two execution cases seem to have been amalgamated and disposed of simultaneously. Then it is no doubt, the case that there were other decree-holders who sought for rateable distribution as well as Hurdwar, and that Hurdwar was preferred as being a subsequent incumbrancer, puisne to Juggernath. But notwithstanding these facts, the order made as between Hurdwar and Sankar Persad seems to have been one coming under sec. 244, cl. (c), and hence no separate suit will lie for the sale-proceeds then awarded to Hurdwar.
On this view of the case, we need not enter into the question of limitation. We may mention, however, that the rulings on the point in Gowri Prosad Kundu v. Ram Ratan Sirkar I. L. R. 13 Cal. 159 and Taponidi Hordanund Bharati v. Mathura Lall Bhagat I. L. R. 12 Cal. 499 are conflicting, and that if we had been of opinion that the suit was maintainable, it would have been necessary for us to have made a reference to a Full Bench as to which of these decisions should be followed.
In these circumstances it is unnecessary for us to discuss any of the other grounds of appeal. But we would add that the Appellant''s 5th ground of appeal must also in our opinion prevail. If the Plaintiff be entitled to bring this suit, it would be necessary for him to show the proportion of the sale-proceeds chargeable to Purea Mahabut. As he seeks to, marshall the sale-proceeds between the mortgaged properties, it is for him to show how this is to be done; we agree with the Subordinate Judge that the evidence on this point on the record is insufficient and for this reason also the suit must fail.
It is unnecessary to consider the question of interest, which moreover, is not raised in the grounds of appeal. For these reasons, we decree this appeal with costs and dismiss the Plaintiff''s suit.