Wanchoo C. J.
(1) This is an appeal by Parsanmal against the order of the Civil and Additional Sessions Judge, Merta, and arises in the following circumstances :
In March, 1939, Hansraj obtained a decree for Rs. 10,558/9/6 against Jethsingh. The decree was executed by Hansraj a number of times during his life-time. But after Hansraj's death, two persons filed separate execution applications for execution of the decree. These were Parsanmal, present appellant, and Dalpatraj, respondent No. 2. Dalpatraj claimed to be the representative-in-interest of Hansraj decree-holder on the ground that he was the adopted son of Hansraj.
It is not in dispute that Dalpatraj is the adopted son of Hansraj, and ordinarily therefore Dalpatraj would be entitled to take out execution on the death of his adoptive father Hansraj who was the decree-holder. Parsanmal, however, contended that Hansraj was only Benamidar for the widow of Kishanraj, and that the real decree-holder was this widow. Further, Parsanmal's case was that though Hansraj was the only son of Kishanraj, he was adopted by Amritraj long ago, and therefore he could not succeed to the property of Kishanraj.
Parsanmal based his own claim to execute this decree on his adoption by the widow of Kishanraj as a son to Kishanraj. Parsanmal's claim thus was that the decree, though ostensibly in the name of Hansraj, was really in favour of Kishanraj's widowas heir of Kishanraj, and as he had been adopted by this widow to Kishanraj, he was now the real owner of this decree and entitled to execute it.
(2) The lower Court framed three points which, according to it, required decision. The second of these questions was whether Parsanmal could apply for execution of the decree on the ground that he was the heir of its real owner. The lower Court, however, did not decide this point and dismissed the execution application of Parsanmal on the decision of the other two points namely whether Hansraj was only a Benamidar for Krishnaraj, and whether Section 47 applied to a dispute between two persons claiming to represent the decree-holder.
It has been urged on behalf of the appellant before us that the second point, which the Court did not decide, should first have been decided. That point raised the question whether it was open to the executing Court to go behind the decree, and allow execution of it by a third person on the ground that the decree-holder was only a benamidar, and that the real owner of the decree was the third person. We shall therefore address ourselves first to this important question.
(3) The general principle of law is that the executing Court cannot go behind the decree except in very limited circumstances like the case where the decree is on the face of it without jurisdiction, or the case where it was passed after the death of the defendant. We are of opinion that the complications that arise in Benami suits should not be allowed to be introduced in matters of execution after the decree has been passed. If the person, who filed the suit, was a Benamidar, there was nothing to stop the real owner also to join the Benamidar at the time of the filing of the suit, and thus get a decree in his own favour.
Where this is not done, it is, in our opinion, not right to allow the so-called real owner to come forward and claim that the decree is in favour of a Benamidar, and that he has a right to execute it and not the Benamidar. That would, in our opinion, be introducing uncertainty into the proceedings of Court, and we would not be prepared to allow it unless there was any compelling reason justifying it, and unless there was no other remedy for the so-called real owner,
(4) We are of opinion that the real owner has a remedy even after he has allowed the decree to be passed in favour of the Benamidar inasmuch as he can file a suit against the Benamidar, who holds the decree, and get it declared that he is the real owner. Thereafter, he can get his name substituted in place of the alleged Benamidar in the decree. These proceedings, our opinion, will not be barred by Section 47(3) for a decision between two persons each claiming to be the representative of a decree-holder, though it may be given by the Court under Sub-section (3) of Section 47, C. P. C., will not bar a suit as between them to establish their right. It is only when the question arises between a judgment-debtor and a decree-holder that a suit is barred under Section 47(1) as between them.
Thus a person claiming to be the real decree-holder has a remedy by way of suit, and if he succeeds in that suit, he can always ask the executing Court to treat him as the decree-holder. But it seems to to that there is no reason why the executing Court should go into these complicated questions under Section 47(3) when there is a dispute of this nature between two representatives of the decree-holder. The view, that we have taken above is supported by the majority of the High Courts in India.
(5) In Madras there was a conflict of opinion between two cases viz., Manikkam v. Tatayya, ILR 21 Mad 388 (A) and Palaniappa Chetty v. Subramania Chettiar, ILR 48 Mad 553: (AIR 1925 Mad 701) (B). In Manikkam's case (A), it was held that if a decree was transferred to a person as Benamidar for the actual purchaser, the latter was entitled to execute the decree and his right course was to apply under Section 232, C. P. C. This view was dissented from in Palaniappa's case (B), and it was held that where a decree had been transferred to a particular person under an instrument in writing, no other person, claiming that he was the real owner under the transfer, and that the transferee named therein was a mere benamidar for him could apply for execution of the decree under the terms of Order 21, Rule 16, C. P. C.
Though these cases deal with an assignee of a decree, the position, in our opinion, would be the same so far as the decree-holders, or their representatives after their death are concerned. The matter was referred to a Full Bench in Madras in view of this difference of opinion, and was decided in Balasubramaniam Chetty v. D. Kothandaramaswami Nayanim Varu, AIR 1942 Mad 688 (C).
In this Full Bench case, the Madras High Court drew a distinction between the case of a decree-holder who was alive, and that of a decree-holder who was dead. They held that where the decree-holder was dead, the question whether he was the Benamidar for somebody else could be gone into when his representatives were to be brought on the record. But if the decree-holder was alive, no one, except the decree-holder, could execute the decree, & a third person could not come forward and say that he was the real owner of the decree, and the decree-holder was the Benamidar, and he should therefore be permitted to execute it.
With all respect to the learned Judges we see no sufficient reason for making this distinction between those cases where the question is raised when the decree-holder is alive, and those where it is raised after his death. It is true that when the decree-holder is alive, no question of finding out his representative arises, and that after his death Section 47(3), C. P. C. comes into play.
But there is, in our opinion, no reason to depart from the general principle that the executing Court should not go behind the decree, and embark on a complicated enquiry of the nature which arises in a Benami suit in the course of execution proceedings under Section 47(3). It may also be added that this Full Bench case did not decide the conflict between the two earlier Madras cases, and left it where it was.
(6) The Lahore High Court in Gurdial Singh v. Gurbakhsh Singh, ILR 8 Lah 35: (AIR 1927 Lab 110) (D), followed Palaniappa's case (B), and held that where there was an assignment of a decree only the assignee could apply under Order 21, Rule 16, and no person could claim in execution that the assignee was a Benamidar for him, and he was therefore entitled to execute the decree.
(7) The Patna High Court also held that it was the, transferee mentioned in the assignment deed who was entitled to be substituted under Order 21, Rule 16, and not any other person who was declared by the assignee to be the real holder of the assignment in his place (See Mohammad Anas v. Bhupendra Erased, ILR 17 Pat 223: (AIR 1938 Pat 457) (E)).
(8) In Satyendra Narain v. Wahiduddin Khan, AIR 1940 Pat 472 (F), a strong Bench of the Patna High Court consisting of Harries C. J. and Fazl Ali J., later a Judge of the Supreme Court, held that a person who is neither a decree-holder within the meaning of Section 2(3), Civil P. C., nor a transferee from a decree-holder by assignment in writing or by operation of law cannot apply for the execution of the decree.
The executing Court must, as a rule, take the decree as, it finds it and can only execute it if application is made by the decree-holder himself or by some person who is entitled under the Code to execute in the same manner as the decree-holder. There is no provision in the Code which allows a person fro come forward and say that the decree-holder was a mere nonentity and that he (the applicant) was in substance and in fact the owner of the decree.
(9) We are of opinion, that this is the right view to take. The question whether the decree-holder is a Benamidar, and that the real decree-holder of the decree is somebody else, if it is to be decided, must, in our opinion, be left to a suit, and should not be allowed to be decided under Section 47(3) in the executing Court.
(10) The same view was taken by the Patna High Court in Sm. Lalmani Kuer v. Sm. Raghubansi Devi, AIR 1944 Pat 307 (G).
(11) In Kirtilal Jivabhai v. Chunilal Manilal, AIR 1946 Bom 27 (H), it was held that under the Civil P. C. it was only the decree-holder who could ordinarily apply for the execution of the decree. If the decree is transferred either by assignment in writing or by operation of law, the transferee can also apply for execution under Order XXI, Rule 16. The executing court can only execute the decree provided the name of the person applying appears as the decree-holder on the face of it.
The executing court cannot look to anything outside or beyond the decree in order to satisfy itself that the person who is applying for execution is the decree-holder. The very definition of decree-holder contained in Section 2, Sub-section (3) of the Code makes this clear.
(12) A review of these cases leads us to the conclusion that the right view to take is that an application for execution can only be made by a decree-holder or by some one to whom the decree has been assigned in writing by the decree-holder or by some one who becomes the owner of the decree by operation of law. The Code does not contemplate an execution application by a person claiming to be the heir of the real decree-holder, and alleging that the person, in whose name the decree stands, is a Benamidar for him.
Such an enquiry is, in our opinion, not contemplated under Section 47(3). It can and should only be tried out in a proper suit, and if the socalled real owner establishes his right by suit, he may then askthe executing court to execute the decree in place of the decree-holder, as he may then claim to step into the shoes of the decree-holder by operation of law. Therefore as Parsanmal is neither a decree-holder, nor a person to whom the decree has been assigned in writing, nor a person who is entitled to the decree by operation of law, he cannot maintain the execution application.
The executing court cannot go into the kind of question raised by Parsanmal, namely that the decree-holder Hansraj was a Benamidar for the widow of Kishanraj, and that he is now the real decree-holder as the adopted son of Kishanraj through the adoption made by his widow. The executing court should not have gone into this question at all, and should have dismissed it on the ground that this question could not be gone into by it.
(13) We, therefore, agree with the decision given by the court below dismissing the application for execution, but not with the reasons therefor. The findings of the executing court on the other two points, which go to the merit of the case, would be of no effect in the view that we have taken.
It may be mentioned that there is a suit pending about this very Benami matter in the court. It will be decided there as to who is the real owner of the decree. After that decision whoever is held to be the real owner may apply for execution if he is otherwise entitled to under the law.
(14) We, therefore, dismiss the appeal withcosts to Dalpatraj.