Banerji and Aikman, JJ.
1. This appeal has arisen in a suit brought by the present appellant for a declaration that he is beneficially interested in a certain decree, and that he is entitled to take out execution of that decree. The facts are these:--Haji Mansur Khan father of the defendant-respondent and one Kadirdad Khan owned an indigo factory and other property. After Kadirdad Khan's death his legal representative sold his half share of the property under a sale-deed, dated the 23rd of August 1887, executed in favour of Asharfi Lal, who was a servant of the appellant's father, Raja Shankar Singh. It is said that Raja Shankar Singh was beneficially interested in the sale-deed, and that Asharfi Lal was a benamidar for him. This allegation has not been traversed in this suit and has been found to be true. It appears that the mother of the defendant-respondent brought a suit for pre-emption in respect of one of the villages included in the sale-deed referred to above, and in that suit impleaded Asharfi Lal and Raja Shankar Singh as defendants. Raja Shankar Singh disclaimed all interest in the property. The suit, however, was dismissed on other grounds. Subsequently a suit was brought in the name of Asharfi Lal against the respondent to recover damages for certain obstructions caused by him to the indigo factory comprised in the sale-deed. A decree was passed in his favour for Rs. 2,250 by tti6 Subordinate Judge of Aligarh, which was affirmed by this Court on the 28th of June 1883. Raja Shankar Singh died in 1891. On the 11th of June 1894, Asharfi Lal executed a document in favour of the appellant, in which he declared that he was merely benamidar for Raja Shankar Singh. To this document we shall have to refer later on. On the 13th of August 1894, Sheoraj Singh applied for execution of the decree referred to above under Section 232 of the Code of Civil Procedure. That application was dismissed on the 18th of September 1894, and thereupon the present suit was instituted. The allegation of the plaintiff was, as we have said above, that he was beneficially interested in the sale-deed and in the decree, and that he was entitled to apply for execution of the decree. The Court of First Instance decreed his claim, but the Lower Appellate Court dismissed it. Hence this appeal.
2. The Lower Appellate Court has held, first, that the plaintiff is estopped from setting up a title to the sale-deed and the decree; secondly, that he is not the assignee of the decree, and that on this point the order refusing his application under Section 232 of the Code of Civil Procedure is conclusive; and thirdly, that it would be against public policy, after Raja Shankar Singh's repudiation of the sale-deed, to grant the declaration sought for in this suit.
3. We are unable to agree with the learned Judge in regard to any of the grounds relied on by him. The plea of estoppel was never raised by the defendant in his written statement, and the learned Judge has spelt out for him a case which he never set up. In his written statement the defendant distinctly stated that the plaintiff's father Raja Shankar Singh was the real owner of the property conveyed by the sale-deed of the 23rd of August 1887. He did not assert that by reason of the disclaimer made by Shankar Singh in the suit for pre-emption he was deceived or was induced to alter his position in any way. The learned Judge says, that in consequence of the statement made by Shankar Singh in the suit for pre-emption the defendent did not advance, in a suit for partition instituted by Asharfi Lal, the defence which he might have raised, and on this ground he holds that the plaintiff is now estopped from claiming an interest in the decree in question. This, however, was not an allegation made by the defendant. As we have said above, he nowhere stated in the pleadings that he was led by any representations of the plaintiff or his father into believing the existence of a state of things which did not in reality exist. As a matter of fact, the defendant has admitted that he was aware that Raja Shankar Singh was the actual purchaser under the sale-deed of the 23rd of August 1887. Any representation made by the Raja therefore could not have induced the defendant to alter his position to his own prejudice.
4. The next ground of the learned Judge's judgment is in our opinion equally untenable. As the plaintiff was not recognised by the Court as a person who, under Section 232 of the Code of Civil Procedure, was entitled to execute the decree and his application under that section was refused, he could not appeal from the order of refusal. The propriety of that order was therefore liable to he contested in a suit, and Section 244 of the Code of Civil Procedure does not bar such a suit. This was held by this Court in Ram Bakhsh v. Panna Lal I.L.R. 7 All. 457, and by the Calcutta High Court in Halodhar Shaha v. Harogobind Das Koiburto I.L.R. 12 Cal. 105. The order relied upon by the learned Judge does not preclude the plaintiff from maintaining the present suit.
5. As regards the third ground of the learned Judge's judgment, we are unable to agree with it. A benami transaction is not illegal, and according to the rulings of the Lords of the Privy Council effect should be given to such transactions, The mere fact that the father of the present plaintiff made an untrue statement in a Court of justice in a previous litigation should not preclude the plaintiff from proving the real nature of the transaction on which he relies.
6. It has been contended before us that the plaintiff should be deemed to be a decree-holder within the meaning of the Code of Civil Procedure, and that as such decree-holder he is entitled to apply for execution of the decree in question. In our opinion a decree-holder within the meaning of Section 2 of the Code of Civil Procedure must be the person whose name is on the record of the suit and in whose favour the! decree is passed, and the only other person who is included in the definition of decree-holder is the person to whom the decree is transferred. The beneficial owner of a decree cannot, in our judgment, be regarded as a decree-holder within the meaning of the Code. We are, however, of opinion that the plaintiff may be treated as the transferee of the decree obtained by Asharfi Lal. The deed executed by Asharfi Lal on the 11th of June 1894, has the effect of transferring to the plaintiff all decrees obtained by him for damages or costs in relation to the property acquired under the sale-deed of the 23rd of August 1887. As the decree now in question is a decree of such a character it was in our opinion transferred to the plaintiff by the instrument of the 11th of June 1894, and the plaintiff' as such transferee was entitled to apply for execution of the decree under Section 232 of the Code of Civil Procedure. As such transferee he has still the right to apply for execution of that decree, provided, of course, that execution is not otherwise barred by law.
7. The learned Counsel for the respondent contended that we should not make a declaratory decree in this case, inasmuch as such a decree would be infructuous, as any application for execution which the plaintiff may now make would be barred by the operation of limitation. It is true that a Court in the exercise of the discretion which it possesses in the matter of passing a declaratory decree should refuse to exercise that discretion where the declaratory decree would be fruitless, but we are informed that in this case certain applications for execution were made which might have the effect of saving the operation of limitation. It would be premature for us to express any opinion as to whether or not execution of the decree is time-barred, and we are not satisfied that this is so clear a case that we should be justified in holding that any decree which we may make in favour of the plaintiff will be of no value to him. For the above reasons we allow this appeal with costs, and, setting aside the decree of the Lower Appellate Court with costs, restore that of the Court of First Instance.