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Ejaz HusaIn and anr. Vs. Govind Pershad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All188
AppellantEjaz HusaIn and anr.
RespondentGovind Pershad
Excerpt:
- - in the case before us the document makes it perfectly clear that mt. we are clearly of opinion that the learned district judge was right in holding that govind prasad is entitled to execute the decree in place of his wife, mt......for the benefit of her husband, govind prasad. she plainly relinquished this right in favour of govind prasad. we cannot construe the relinquishment of such right otherwise than as an assignment of her right to execute the decree to her husband, govind prasad.4. we have examined the appellants' petition of objection and note that they did not. raise any question of estoppel operating against govind prasad in asserting his right as the real decree-holder. if such a complication had existed, different considerations might have arisen. the case is a very simple one, in which the ostensible decree-holder disclaims all right in the subject-matter of the decree and authorizes another person, the real decree-holder, to execute it for his own benefit. we are clearly of opinion that the.....
Judgment:

Niamatullah, J.

1. This is a judgment-debtors' appeal from the order of the learned District Judge of Moradabad dismissing their appeal from the order of the Munsif of Sambhal, who dismissed their objection to execution being taken out by one Govind Prasad. The facts are that Mt. Champa Dei obtained a decree on foot of a mortgage-deed against the appellants. Subsequently she executed a document styled as a deed or relinquishment or release by which she declared that her husband Govind Prasad was the real mortgagee and decree-holder, she being his bena-midar. The deed further mentioned that the executant had relinquished all her rights in the decree in favour of her husband, Govind Prasad. Relying on the deed of relinquishment Govind Prasad applied for execution of decree in place of Mt. Champa Dei. The appellants objected on the ground that the only person who was entitled to execute the decree was Mt. Champa Dei, and that in spite of the deed of relinquishment already referred to Govind Prasad had no right to proceed with the execution of the decree. Reference was made to Order 21, Rule 16, Civil P. C., which authorized the assignee of a decree-holder to execute the decree in place of the original decree-holder. Both the Courts below overruled the objection and allowed execution to proceed at the instance of Govind Prasad.

2. The learned advocate for the appellants has referred us to two cases, which, he claims, are applicable to the circumstances of the present case. The first is Palaniappa Chettiar v. Subramania Chettiar AIR 1925 Mad 701, in which it was laid down that where a decree has been transferred to a particular person under an instrument in writing, no other person, claiming to be the real owner under the transfer, and alleging the transferee named therein to be a mere benamidar for him, can apply for execution of the decree, under Order 21, Rule 16, Civil P.C. What distinguishes that case from the present one is the circumstance that the alleged benamidar in that case had not executed any document relinquishing his own title in favour of the alleged real transferee. The learned Judges of the Madras High Court held that Order 21, Rule 16, Civil P.C. cannot apply unless a transfer or assignment by the decree-holder comes into existence. In the case before us we have to consider whether the deed of relinquishment admittedly executed by the ostensible decree-holder amounts to an assignment within the meaning of Order 21, Rule 16.

3. The second case to which reference has been made on behalf of the appellants is Ram Sewak Lal v. Satruhan Deo Sahai A.I.R. 1927, Pat. 170. In that case one Lachmi Narain sued on foot of a handnote. The defendant contested the suit on the ground that Satruhan Deo Sahai was the real obligee under the bond, and that the plaintiff, Lachmi Narain was only benamidar, and therefore not entitled to sue. A compromise was arrived at, which expressly declared that Satruhan Deo Sahai, the alleged real obligee of the bond had no interest in the debt, and that Lachmi Narain was entitled to sue. A decree was accordingly passed in favour of Lachmi Narain in term? of the compromise. In spite of the declaration contained in the compromise Lachmi Narain subsequently executed what he called a deed of release in which he declared that Lachmi Narain was a benamidar for Satruhan Deo Sahai in the above suit. The report of the case does not show whether there were any such operative words as could have the effect in law of transferring the rights of Lachmi Narain to Satruhan Deo Sahai. On the face of it the deed of relinquishment in that case merely declared a fact which had been negatived in the compromise and the decree itself. In these circumstances the learned Judge held that the relinquishment in question before them did not amount to an assignment of the decree-holder's right to execute the decree. We do not think that that case lays down any general rule of law. It will depend entirely upon the nature of the right and the words employed in the document described as a deed of relinquishment or deed of release. In the case before us the document makes it perfectly clear that Mt. Champa Dei was a nominal decree-holder and that the mortgagee rights were vested in her husband, Govind Prasad. If this correctly represents the right of Mt. Champa Dei, and we must assume that it does, she had no right in the mortgaged property. The only right she had was to execute the decree for the benefit of her husband, Govind Prasad. She plainly relinquished this right in favour of Govind Prasad. We cannot construe the relinquishment of such right otherwise than as an assignment of her right to execute the decree to her husband, Govind Prasad.

4. We have examined the appellants' petition of objection and note that they did not. raise any question of estoppel operating against Govind Prasad in asserting his right as the real decree-holder. If such a complication had existed, different considerations might have arisen. The case is a very simple one, in which the ostensible decree-holder disclaims all right in the subject-matter of the decree and authorizes another person, the real decree-holder, to execute it for his own benefit. We are clearly of opinion that the learned District Judge was right in holding that Govind Prasad is entitled to execute the decree in place of his wife, Mt. Champa Dei. For the reasons mentioned above we uphold the order appealed from and dismiss this appeal, with costs.


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