1. One Lakmisetti Subrayadu obtained a decree for money in Original Suit No. 242 of 1892. Shortly after, one Patti Subra-yadu (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 Manikkam, alleging that he and his brother, the fifth respondent, are the real transferees and that Patti Subrayadu was but a benamidar for them, has now applied to execute the decree.
2. 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.
3. 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 Cal. 388 Arasappan v. Pulugusari (Appeal against Appellate Order No. 27 of 1894 (unreported) and Sethurayar v. Shun-mugam Pillai Vide ante p. 353.
4. 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, If, however, he was not in fact 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 it, is of no consequence. Nor does the circumstance that the alleged nominal transferee denies that he is a nominal transferee affect the right of the 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 All. 483 Gour Mohun Golui v. Dino Nath Karmakar 2 C. W 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 Patti 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 on either side.
5. 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 she finding has been posted up in this Court.
6. We 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.
7. [In compliance with the above order the District Judge returned his finding which was to the effect that Patti Subrayadu was the real transferee. In the result the case having come on for hearing on the 15th of July 1898 the Court delivered judgment accepting the finding and dismissing the. appeal with costs.]