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Manickam Vs. Tatayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1898)8MLJ48
AppellantManickam
RespondentTatayya and ors.
Cases ReferredGour Mohan v. Golui and Madhub Chandra Samanta
Excerpt:
- - the finding will be upon the evidence on record, unless the judge is satisfied that the appellant had not sufficient opportunity of adducing evidence on the point as alleged by him. if the judge is so satisfied fresh evidence may be received......so. the appellant, manda manickam, alleging that he and his brother, the 5th respondent, are the real transferees and that potti subrayudu was but a benamidar for them, has now applied to execute the decree. as i understand the order of the district judge, he holds that even if the appellant is one of the real transferees, section 232, civil procedure code, does not admit of such transferee applying under the section, and further, supposing that an application for the execution of the decree by such transferee is entertainable under the section, the courts should, in the exercise of their discretion, decline to grant the application. but it is impossible to doubt that, notwithstanding the form of the transaction, it is the person beneficially entitled under the transaction that is the.....
Judgment:

Subrahmania Aiyar, J.

1. One Lakimsetti Subrayudu obtained a decree for money in original suit, No. 242 of 1892. Shortly after, one Potti Subrayudu (deceased), alleging himself to be the transferee of the decree, applied to be permitted to execute the decree, and he was allowed by the Court to do so. The appellant, Manda Manickam, alleging that he and his brother, the 5th respondent, are the real transferees and that Potti Subrayudu was but a benamidar for them, has now applied to execute the decree. As I understand the order of the District Judge, he holds that even if the appellant is one of the real transferees, Section 232, Civil Procedure Code, does not admit of such transferee applying under the Section, and further, supposing that an application for the execution of the decree by such transferee is entertainable under the Section, the Courts should, in the exercise of their discretion, decline to grant the application. But it is impossible to doubt that, notwithstanding the form of the transaction, it is the person beneficially entitled under the transaction that is the transferee of the decree. The right of such transferee to apply under Section 232 has been admitted: Abdul Kureem v. Chukhun 5 C. L. R. 253; Balkishen Das v. Bedmati Koer I.L.R. 20 C. 388 No. 1393 of 1896.

2. It is true that in' the present instance the alleged nominal transferee applied and was allowed to execute the decree on the footing that he was the real transferee. The proceedings taken by him in execution though binding upon the real transferee so far as they go, could not estop the latter from claiming to conduct the further execution of the decree himself. And so far as this point is concerned the fact that the real transferee comes forward to execute the decree after the nominal transferee has been allowed to execute, is of no consequence. Nor does the circumstance that the alleged nominal transferee denies that he is a nominal transferee affect the right of a person claiming to be the real transferee to have the point tried. Under the law as it now stands it may be tried in the execution proceedings or in a separate suit according as the Court considers the one or the other the more convenient course to be adopted in the particular case. It is scarcely necessary to point out that when there is a contest the question whether the party claiming to be the real transferee is or is not such, is a question as to whether he is a representative of the party to the suit in whose favour the decree was given and, therefore, falls under the last paragraph of Section 244 of the Civil Procedure Code: Badri Narain v. Jai Kishen Das I.L.R. 16 A. 483 Gour Mohan v. Golui and Madhub Chandra Samanta v. Deo Nath Karamkar (2 C. Weekly Notes, page 76). The District Judge was, therefore, wrong in my view in holding that the appellant was not entitled to apply under Section 232 of the Code. He was also wrong in considering that, even if the application was entertainable under the Section, because the transfer was benami, the Court should therefore refuse to allow the real transferee to execute it. I would, therefore, call upon the District Judge to submit a finding upon the question whether Potti Subrayadu was the real transferee or the appellant and his brother are the real transferees. The finding will be upon the evidence on record, unless the Judge is satisfied that the appellant had not sufficient opportunity of adducing evidence on the point as alleged by him. If the Judge is so satisfied fresh evidence may be received. The finding is to be submitted within one month from the date of the receipt of this order, and seven days will be allowed for filing objections after the finding has been posted up in the Court.

Shephard, J.

3. I reserved judgment in the case only because some doubt was entertained as to whether the claim of the appellant could legally be dealt with on a petition. I agree with my learned colleague in holding that the appellant may apply under Section 232 of the Civil Procedure Code and also in the proposed order.


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