1. The contesting parties in this appeal are Plaintiff and Defendant 4. Plaintiff filed a suit for money (O.S. No. 1 of 1923 Sub-Court, Tellicherry) against Defendant 1 and others and obtained a decree in September 1924. Defend ant 4 is the holder of another decree (in O.S. No, 394 of 1921 District Munsif's Court Kasargod). That suit (O.S. No. 394 of 1921) was originally filed by Defendant 1 but on 4th August, 1921 first Defendant assigned his claim against the Defendants in that suit to Defendant 4. Defendant 4 was then impleadea as supplemental second Plaintiff and on 11th March, 1922 a compromise decree was passed in favour of Defendant 4 alone. Now when Plaintiff brought his suit against Defendant 1 in 1923 he attached this decree in favour of Defendant 4 before judgment, alleging that Defendant 4 was really only a benamidar for Defendant 1. Defendant 4 objected to this attachment and the attachment was raised. Plaintiff then in 1923, filed the present suit and obtained a declaration from the District Munsif of Cannanore that he was entitled to attach Defendant 4's decree in execution of his own decree against Defendant 1. This declaration was upheld in appeal by the District Judge of North Malabar and Defend ant 4 has now filed this Second Appeal. Both Courts below are agreed on the facts that the transfer from Defendant 1 to Defendant 4 was a nominal one and that Defendant 4 is therefore merely a benamidar for Defendant 1. The only question before us is whether Plaintiff's suit was or was not maintainable.
2. The first ground of attack is that as the value of Defendant 4's decree at the date of the institution of Plaintiff's suit was more than Rs. 3,000 that suit would not lie in the Court of the District Munsif. The learned District Judge has dealt with that objection in para. 3 of his judgment and has shown that the conditions laid down in Section 11 of the Suits Valuation Act have not been satisfied in this case; and his decision on this point has not been seriously challenged before us.
3. Nor is it seriously disputed that in the narrow meaning of the term Plaintiff's suit was undoubtedly maintainable as Order XXI, Rule 63 of the Civil Procedure Code expressly gives him the right to sue.
4. The real argument in appeal is this. Defendant 1 could' never have been permitted to execute a decree granted in favour of Defendant 4. Plaintiff can have no higher rights than Defendant 1 could have. Plaintiff also therefore cannot execute Defendant 4's decree. If he attaches it his only further course under the Code (see Order XXI, Rule 53) is to execute it. But he cannot execute it for the reason just given. Any declaration therefore which he may get in this suit is futile, and on this ground the suit ought to have been dismissed without any enquiry into the facts.
5. We think there can be no doubt but that the first step in this argument is established. It has been held in Palaniappa Chettiar v. Subramania Chettiar I.L.R.(1924) 48 Mad. 553 : 48 M.L.J. 419, that where a decree has been transferred to any particular person under an instrument in writing no other person who claims that he is the real owner under the transfer can apply for execution of the decree and the principles underlying that decision apply with added force to the facts of the present case where Defendant 4 is the original decree-holder himself and Defendant 1 was a party to the suit in which he obtained the decree. Manikkam v. Tatayya (1889) M.L.J. 21 Mad. 388 : 8 M.L.J. 48 on which the learned advocate for the Respondent seeks to rely has been definitely dissented from in Palaniappa Chettiar v. Subramania Chettiar I.L.R.(1924) 48 Mad. 553 48 M.L.J. 419, Nilkanta Ghosal v. Ramcharan Roy (1928) 55 C.L.J. 82 also cited for the Respondent is the judgment of another High Court and proceeds upon the assumption that there is no dispute between benamidar and real owner. We therefore agree that this decree could not have been executed by Defendant.
6. But at its second step we think the argument breaks down, for the argument amounts to this, that Plaintiff is entirely precluded from proceeding in execution against this decree. This can only be so if it be held that Defendant 1 has no property in the decree. To say that Defendant 1 cannot be permitted to execute a decree passed nominally in favour of Defendant 4, and to say that Defendant 1 has no property in that decree are two very different propositions. The property in a decree is not merely the right to execute it - much more essentially is it the right to the actual money which is realised by its execution, and if this particular decree were to be executed by Defendant 4 we do not see how it could possibly be denied on the facts found that Defendant 1 would be entitled to claim the money realised. It is this money at which, of course, the Plaintiff aims, money which is really due to Defendant 1, money which if realised is Defendant 1's property held by Defendant 4 in trust for him, and we see no valid reason why the Plaintiff who holds a decree against Defendant 1 should not have a declaration permitting him to attach a decree whose real owner is his judgment-debtor.
7. Whether this declaration is or is not a futile one is not a point with which we need now concern ourselves. No doubt if Defendant 4 had already executed the decree, a declaration permitting its attachment might serve no useful purpose and Plaintiff might be driven to alter the form of his prayer or take other proceedings, but we need not assume that difficulties actually exist in this case of whose existence we have not been informed. For the reasons given we think that the decisions of the two Courts below were right, and that this appeal must be dismissed with costs of Respondent 5. Civil Miscellaneous Appeal No. 336 of 1928 is dismissed. No costs.