Ram Sewak Lal vs Satruhan Deo Sahai

Allanson, J.—A suit on a handnote was brought against the present appellant by one Lacmi Narain. The defendant pleaded inter alia that Lachmi Narain was a benamidar for the present respondent Satruhandeo Sahai, a Government servant, and that the latter had advanced Rs. 1,000 for the purposes of the ghee business carried on by the plaintiff, defendant and Satruhandeo Sahai in partnership. The suit was compromised, and a consent decree was passed under which the defendant was to pay Rs. 1,010 to the plaintiff with interest and costs.

It was also declared that Satruhandeo Sahai had never any connexion with the ghee business. On 7th April 1924 Lachmi Narain executed a deed of release in favour of Satruhandeo, wherein it was stated that Lachmi Narain was a benamidar for Satruhandeo in the above suit, and that it had become necessary to execute a deed of relinquishment of the decretal amount. On 30th May 1924, Satruhandeo filed an application for execution before the Munsif of Patna. Notice was issued under Order 21, Rule 16, to the judgment debtor who asked for time to object.

Ultimately no objection was filed and Satruhandeo was substituted for Lachmi Narain as decree-holder, and the decree was transferred to the Munsif of Motihari for execution. The judgment-debtor, then filed an objection u/s 47 that Satruhandeo had no right to execute the decree. The objection was allowed. On appeal the learned Additional District Judge set aside the order of the Munsif, holding that Satruhandeo had a right to execute the decree.

On appeal it has been contended that the deed of release is not a deed of assignment. As was pointed out in Dharam Chand Boid v. Mouji Sahu [1912] 16 C.L.J. 436 parties cannot effect by a release what could be legally attained only by an assignment properly executed. It is well established that title cannot pass by admission when the law requires a deed. It was argued on behalf of the respondent that as either the real owner or the benamidar has the right to sue so the real owner has the right to execute a decree obtained by the benamidar. No authority in support of this proposition was placed before us. A decree can only be transferred by assignment in writing or by operation of law. The deed of release in the present case is not a deed of assignment, and under it the respondent has obtained no right to execute the decree.

There remains the question, whether the failure of the judgment-debtor to file an objection against the execution of the decree on receipt of the notice under Order 21, Rule 16 from the Munsif of Patna operated to prevent his objection being entertained by the Munsif of Motihari. Reliance was placed by the respondent on Monmohan Karmakar v. Dwarka Nath Karmakar [1910] 12 C.L.J. 312. Our attention was also called to Ram Chunder v. Mohendro Nath Bose [1874] 21 W.R. 141 in which it was held that when a decree is transferred and the transferee has been substituted for the decree-holder it is not open to the Court to which the decree has been transferred for execution to entertain any question as to the transferee''s right to execute the decree.

In Dhanammal Vs. Veeraraghava Naidu and Others, the High Court of Madras decided that the omission of a judgment-debtor to take objection to the assignment of a decree and to its transmission to another Court does not preclude him from raising in the latter Court the question that the decree is not executable.

In Monmohan Karmakar v. Dwarka Nath Karmakar [1910] 12 C.L.J. 312 mentioned above the objection was raised on a subsequent application, and not at a later stage of the same application. In the present case there appears to have been no adjudication by the Munsif of Patna on the executability of the decree. It is true that when notice under Order 21, Rule 16 was given to the judgment-debtor of the application for execution he failed to file any objection before the decree was transferred for execution. But I am of opinion that he is not thereby precluded from raising an objection as to the right of the respondent to which the decree has been transferred for execution.

The order of the learned Additional District Judge is set aside and the application for execution is dismissed.

The appeal is allowed with costs in all the Courts.

Adami, J.

I agree.