(1) This appeal has come for hearing before us on a reference by our learned brother Sharfuddin Ahmed J. Sanjeeva Row Naidu, J., Who heard C. M. A. No. 237 of 1958 made certain observation regarding the scope of o. 21, Rule 16 C. P. C. while remanding that appeal and following them the lower appellate court allowed the C. M. A. C. M. S. A. A. No. 95 of 1961 is directed against that decision. Sharfuddin Ahmed J., was not prepared to accept the correctness of the view expressed by Sanjeeva Row Naidu, J. as it was contrary to bench decisions of the Madras High Court, namely Ramayya v. Krishnamurthi, ILR 40 Mad 296 : ( AIR 1917 Mad 590 ) and a. Venkataratnam v. Annabattula Nayudu, 28 Ind Cas 906 : (AIR 1915 Mad 799) and hence referred the Appeal to a Bench.
(2) In order to fully appreciate the contentions raised by the appellant , the antecedent facts may briefly be noticed. One Boda Subbarao, the 2nd respondent before us, obtained a money decree against Gunnam Lakshmipathi (3rd defendant), the appellant before us and Gunnam Bulli Abbayi (5th defendant) 4th respondent before us, in O. s. No. 8 of 1955 for Rs. 5679-13-0 on the foot of a promissory note executed by them. Yedlapalli Veera Venkata Subbarao, the son-in law of the 5th defendant (who is the 1st respondent before us) filed E. A. No. 139/56 on the file of the Subordinate Judge, Rajahmundry for his being recognised as a transferee of the decree from Boda Subbarao under the transfer deed Ex. A. 1 dated 27-1-1956 for Rs. 6,000/- that application was opposed only by the 3rd defendant the decree holder and the other defendants having remained ex parte.
The contention of the 3rd defendant was that when the decree-holder was about to execute the decree against the 5th defendant, he paid the amount, and obtained a transfer of the decree benami in the name of his son-in-law, had no means to obtain a transfer of the decree. It was, therefore, alleged by the 3rd defendant that the decree having been satisfied by the payment by the 5th defendant, and the petitioner being only his nominee or benamidar, the transfer could not be recognised under O. 21, Rs. R. 16 C. P. C.
(3) On a consideration of the evidence and the law bearing on the point, the learned Subordinate Judge held that the decree was discharged by the 5th defendant with his money, but took the transfer benami in the name of the petitioner who is no other than his son-in-law and who was living with him, and consequently refused to recognise the transfer.
(4) Against this order, the mater was carried in appeal in A. S. No. 181 of 1956. The learned District Judge in the course of his judgment dated 19-12-1957 held that though Ex. A. 1 may be true and supported by consideration, the question had still to be decided whether the transfer deed was taken by the petitioner benami for the 5th defendant or not. The learned Judge felt that there were some discrepancies in the oral evidence on behalf of the contesting judgment - debtor (3rd defendant and also that the best evidence which could have been adduced, namely, of the decree-holder (Boda Subbarao) and Sri Sivaramakrishnayya, the counsel for the 5th judgment - debtor, was not placed before the court. The District Judge, therefore felt that the interests of justice required that there should be a remand of the appeal to the executing court, and without expressing his own opinion set aside the order and remanded E. A. No. 139/56 to the Court of the Subordinate Judge for fresh disposal in the light of the observations made by him.
The learned Judge gave opportunity to both sides to adduce further evidence in support of the contentions, and observed that the court should insist on the examination of the decree-holder as well as Sri Sivaramakrishnayya and Sri M. Suryanarayana, the advocate for the decree-holder if considered necessary.
(5) Against this judgment , an appeal was preferred to this Court in C. M. A. No. 237 of 1958 which was disposed of by our learned brother Sanjeeva Row Naidu J., on 22-12-1960. Holding that the order of remand by the District Judge was not warranted by Order 41, Rule 23 C. P. C., the learned Judge allowed the appeal and set aside the decision of the District Judge, and directed him to hear and dispose of the appeal A. S. No. 181 of 1956 in accordance with law, and in the light of the observation made in his judgment .
(6) Pursuant to the order of remand of Sanjeeva Row Naidu, J., the District Judge, East Godavari, heard A. S. No. 181 of 1956, allowed the appeal and set aside the order of the executing court and recognised the transfer in favour of the petitioner . The reason given by the learned District Judge was that in the order of remand, Sanjeeva Row Naidu., J decided that the question whether the transfer was taken by the petitioner benami for the fifth judgment - debtor was irrelevant and outside the scope of Order 21, Rule 16 C. P. C. and that the question of benami for the 5th judgment - debtor could not be raised.
(7) Aggrieved by this decision, the 3rd judgment - debtor has preferred this appeal, and our learned brother, Sharfuddin Ahmed J., before whom it came up for hearing, referred the case to a Bench.
(8) Sri Rajeswara Rao., the learned counsel for the appellant contends : (1) that the District Judge after remand, ought to have considered the question whether the transfer was obtained by the petitioner benami for the 5th defendant or not., and (2) that the observations of Sanjeeva Row Nayudu J., cannot be understood as negativing such an enquiry.
(9) For a proper determination of the questions raised, the effect of the order of remand of Sanjeeva Row Nayudu J., has to be determined. The learned Judge rightly observed that the question mooted above before the Subordinate Judge was whether the money representing the consideration under Ex. A. 1 was advanced by the transferee-decree-holder himself or the 5th judgment - debtor in the suit. He further observed that no objection can be taken by the judgment - debtor on the ground of want of consideration for the transfer, as he had nothing to do with it, and that was a matter between the decree-holder and the transferee decree-holder, and that the decree-holder in the instant case remained ex parte and has not raised any objection to the recognition of the transfer.
The learned Judge also observed that the judgment - debtor could only raise those objections which are available to himself if the original decree- holder had applied for execution. He then remarked that it was nobody's case that the decree had been satisfied by the judgment - debtor paying to the original decree-holder. This is obviously not correct, as the case of the 3rd judgment - debtor paying to the original decree-holder. This is obviously not correct, as the case of the 3rd judgment - debtor has been that the 5th defendant supplied the funds and took the transfer for the benefit benami in the name of the petitioner .
(10) In the appeal before the learned Judge , the contention of the 3rd judgment - debtor was that the lower appellant Court was not justified in remanding the case for further evidence , and that it should have disposed of the appeal on the evidence already on record, and should have accepted the finding of the Subordinate Judge. Sanjeevarao Naidu, J., did not affirm the order of remand by the District Judge, and directed that the appeal should be disposed of on the evidence already on record. That is the ratio decidendi of the judgment , and the observations under O. XXI, Rule 16 C. P. C. are merely in the nature of obiter.
(11) It was therefore incumbent upon the District Judge after remand to hear and decide it on the evidence already on record. But the District Judge considered the observations of Sanjeevarow Naidu J., as a direction that he should recognise the transfer straightway. This construction of the judgment is clearly unsustainable.
(12) Omitting the unnecessary words, O. 21 R. 16 C P. C. reads thus:
'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 to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree holder.
Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.'
(13) The effect of the second provision to O. 21, R. 16 C. P. C. has been summed up in Mulla's C.P. C. (12th Edition ) at page 780 as follows ;
'Where a decree for the payment of money has been transferred by assignment or by operation of law to one of several judgment - debtors, the decree is wholly extinguished. The transferee cannot execute the decree against the other judgment - debtors, but his remedy against the other judgment -debtors, but his remedy against them is by a regular suit for contribution, as if the decree had been satisfied by him. The object of the second proviso to the rule is not to deprive the judgment - debtor transferee of all reliefs but to impose upon him the duty of proceedings by what was considered a more appropriate procedure, that is, a suit for contribution'.
(14) Relying upon a decision of a Bench of the Madras High Court in ILR 40 Mad 296 : (AIR 1917 Mad. 590) it was further stated by the learned commentator that the provision of this rule cannot be evaded by the j/- debtor , who satisfied the decree, taking a transfer of the decree in the name of a benamidar. A number of other cases were also cited on this point in support of this principle and we do not consider it necessary to make reference to all of them.
(15) We cannot, therefore assume that Sanjeeva Row Naidu, J., intended to lay down anything contrary to these well established principles, though some observations in his judgment lend support to this view. We therefore, hold that it was incumbent on the District Judge, after remand, to decide the question whether or not the transfer was taken by the petitioner benami for the 5th judgment - debtor on the evidence on record. he should have remembered that the question was decided in favour of the judgment - debtor by the executing court, but no finding on that point was recorded wither by the District Judge in his order dated 19-12-1957 or by Sanjeeva Row Naidu, J.
(16) Sri Anantha Babu the learned counsel for the respondent very strenuously argued that the judgment of Sanjeevarao Naidu, J must be deemed to have decided that the plea of benami could not be gone into even if that view be incorrect, and that neither the District Judge, nor we in this appeal, are entitled to question it. We cannot accede to this argument, that was not the question mooted before him. In those circumstances his order cannot before him. In those circumstances his order cannot operate as res judicata in the subsequent proceedings.
(17) The learned Counsel for the respondent next relied on a decision of the Calcutta High Court in M. L. Das and Sons v. Sampatmull : AIR1954Cal103 and also on Ethiraja Mudali v. Muthu Reddi, : AIR1961Mad410 . The Principles laid down in both these cases have no application to the facts of the present case.
(18) The learned counsel put forward another contention on behalf of the respondent. He argued that the objection raised by the 3rd judgment - debtor amounts to pleading a satisfaction of the decree by the 5th judgment - debtor and that inasmuch as satisfaction or adjustment was not certified with in the prescribed period as required under Or. 21, R. 2 C. P. C. the 3rd judgment - debtor is precluded form raising it even as an objection to the recognition of the transfer of the decree under Or. 21, R. 16 C. P. C. for this proposition he relies upon a Full bench decision of the Madras High Court in Subramaniam v. Ramaswami, 62 Mad. L. J. 562 : (AIR 1932 Mad 372 FB). There it was laid down that a judgment -debtor cannot plead an uncertified adjustment in opposition to an application under O. 21, R. 16 C. P. C. by the transferee-decree-holder. This decision was also approved by the Privy Council in Bhavani Shankar v. Gordhandas, AIR 1943 P. C. 66.
(19) There are cases where the judgment debtor, who pleaded the discharge of the decree, resisted recognition of its transfer and that was not permitted.
(20) But the facts in the instant case are different. The contention of the 3rd judgment debtor is not that he discharged the decree, but that the decree had been satisfied by payment by the 5th judgment -debtor to the decree-holder that the transferee is only a benamidar for the 5th judgment -debtor and therefore ought not to be recognised as such. That apart this objection was not raised in any of the courts in the chequered history of this case till now. We see no force in this contention ether.
(21) For all these reasons, we set aside the decree and judgment of the learned District Judge and direct him to take back A. S. No. 181 of 1956 to his file and decided the question whether the transfer in favour of the petitioner - appellant taken benami for the 5th judgment debtor and dispose of the appeal in accordance with law on the evidence already on record. In the circumstances of the case, we make no order as to costs in this appeal.
(22) Appeal Allowed.