Chamier and Piggott, JJ.
1. These are appeals against an order of the Subordinate Judge of Mainpuri, rejecting an application presented by the appellants for an order absolute under Section 89 of the Transfer of Property Act. A decree nisi was passed in favour of two persons, Sheo Prasad and Tulsi Ram, on December, 24th, 1900, and was confirmed on appeal by this Court with a slight modification on the 19th January, 1914. That decree was passed against Musammat Indomati and others. The business of the decree-holders failed and their rights under the decree were put up for sale in execution of a decree held against them by Moti Lal and Fateh Lai. At the execution sale the share of the decree-holder Sheo Prasad was sold to one Ram Bharose and the appellants assert that on the 27th September, 1905, the rights of Ram Bharose were transferred to Bisheshar Nath and that on the 3rd May, 1906, Bisheshar Nath transferred his rights to Kamta Prasad the appellant in appeal No. 331. At the same execution sale the share of the decree-holder Tulsi Ram was sold to Ajudhia Prasad. Badlu Ram the appellant in appeal No. 332 says that on the 31st March, 1905, Ajudhia Prasad transferred to him all his rights under the decree.
2. The appellants therefore applied to the court below for the passing of an order absolute in the capacity of transferees of the decree. The application was resisted by the judgement-debtors on the ground that the applicants were benamidars and, therefore, could not maintain the application. The court below on the question of fact has held that the appellants are no more than benamidars for the original decree-holders, Sheo Prasad and Tulshi Ram, who, it is supposed, have re-purchased their rights under the decree in the names of other persons in order to protect those rights from attachment and sale at the instance of their other creditors. The court below has in accordance with the decisions of the Calcutta High Court held that the appellants are benamidars are not entitled to apply for an order absolute.
3. In appeal it is contended that the decision of the court below on the question of fact is erroneous. We have been taken through the evidence regarding the purchases effected by the appellants and we think it sufficient to say that we agree with the Subordinate Judge that it is proved that the appellants are no more than benamidars for other persons.
4. Next it is contended that even if the appellants are benamidars they are entitled to maintain the application. All the reported cases upon the question whether a benamidar can execute a decree as the transferee thereof seem to have been decided by the Calcutta High Court, and we have been referred in the course of the arguments to a number of them. The net result of the Calcutta cases seems to be that a benamidar is not entitled to take out execution of a decree as the transferee thereof, but if he succeeds in doing so his application for execution may in some cases be sufficient to save a subsequent application by the real decree-holder from the bar of limitation. The question whether a benamidar may take out execution of a decree as the transferee thereof does not seem to have been decided by any other High Court. But this Court agreeing with the Bombay and Madras High Courts and differing from the Calcutta High Court has held that a benamidar may bring a suit of any kind in his own name, see Yad Ram v. Umrao Singh (1899) I.L.R. 21 All. 380 which was a suit for sale; Nand Kishore Lal v. Ahmad Ata (1895) I.L.R. 18 All. 68. which was a suit for possession; Bachcha v. Gajadhar Lal (1905) I.L.R. 28 All. 44, which was a suit for partition, and the very recent case of Parmeshwar Dat v. Anardan Dat (1915) I.L.R. 37 All. 113 which was a suit for sale on a mortgage. It was pointed out by Sir Arthur Strachey in the case of Yad Ram v. Umrao Singh, cited above, that in those cases which have affirmed the right of the benamidar to sue, the right has been based partly on the fact that he is the transferee named in the registered instrument constituting the transfer and on the principle that the contract can be enforced by the parties who have entered into it, and partly on the view that the benamidar must be presumed to be suing on behalf of the beneficial owner or to put the same idea in other words that the suit is really brought by the beneficial owner through and in the name of the benamidar. It is well-established in this Court that a benamidar is entitled to maintain a suit. It seems to us that the principle upon which a benamidar has been allowed to maintain a suit applies equally to the execution of a decree. It was contended that Order XXI, Rule 16, shows that it is only the real transferee, that is the person beneficially interested in the transfer, who can apply for execution of a decree. We cannot accept this argument. It seems to us that the considerations which have led this Court to hold that a benamidar can maintain a suit apply with even greater force to an application for execution by a transferee who is a benamidar. The transfer is in favour of the person who applies for execution of the decree and it seems unreasonable that the court executing the decree should be required to enter into the question whether the ostensible transferee is the real transferee or not, and in this connection we may refer to what was said by the present Chief Justice in the case of Intikhab Husain v. Rafi-un-nissa Weekly Notes 1907, p. 39. He observed that it might be urged with great force that whether the assignment was real or not was a matter with whish the judgement-debtor was not concerned.
5. In the present case there can be no doubt whatever that the application for order absolute was put in with the full approval and consent of the persons for whom the appellants are said to be benamidars. In our opinion the application should not have been dismissed on the ground 'that the appellants were benamidars. As between the appellants and Sheo Prasad and Tulshi Ram on the one hand and the judgement-debtors on the other we hold that the application of the appellants is maintainable. We put it in this form because we have been told that in consequence of the decision of the court below one Gopal Das who held a decree against Sheo Prasad and Tulshi Ram has in execution of that decree attached, brought to sale and purchased himself the rights of Sheo Prasad and Tulshi Ram under the decree nisi of January, 1904, and we have also been informed that the present appellants have brought a suit for a declaration of their rights as beneficial owners of the decree nisi. It will be for the court below to consider and determine the effect of the alleged purchase by Gopal Das and of any decision that may be arrived at in the suit brought by the appellants for a declaration of their rights. We would also point out that Gopal Narain and others resisted the application for an order absolute on the ground that they are purchasers of two-thirds of a village called Palo Kalan and they say that the suit was dismissed by the High Court against them and their property. This is a point which must be taken up and decided by the court below. We set aside the order of the court below and sending the case back to that court we direct that the appellant's application be restored to the pending file and disposed of according to law. Costs of this appeal will be costs in the cause.