1. This was an application by the petitioner as the person beneficially entitled to the fruits of the decree in O.S. No. 293 of 1899 on the file of the Court of the District Munsif of Trichinopoly which had been obtained by one Krishnaswami Iyengar to be made a party to the appeal against the order of the District Munsif removing the obstruction of the respondent Ramachandra Thondaman by agent Pothan, against possession of the property, purchased in execution being taken. The learned Subordinate Judge had dismissed the application holding that petitioner should file a fresh execution application and cannot claim to join in the present proceedings relying on Manikkam v. Tatayya I.L.R. 26 C. 250. In that case such a point was not discussed or decided. That case really decided that the beneficial owner can come in and execute a decree obtained by a benamidar and if there was any dispute about the decree being benami the executing Court should decide it.
2. Devar Buksh Sirkar v. Fatik Jali I.L.R. (1898) Mad. 388 shows that a beneficial owner can ask to be added to a pending execution application and it has been held in Muthiah Chettiar v. Govindoss Krishnadoss 41 M.L.J.316 that a part transferee of a decree can apply to execute it even though there was an agreement to the contrary. The principle is clearly that parties should be allowed to join the record when their rights are in danger. In this case therefore petitioner should have been added as party respondent.
3. There is no meaning in telling petitioner to bring a fresh application for execution as the execution has been almost completed by sale of the property and the only thing now remaining being to give possession to the auction purchaser.
4. I would therefore set aside the order of the Lower Appellate Court and direct the Subordinate Judge to add petitioner as party respondent and dispose of the appeal according to law. There will be no order as to costs here. This order will govern all the three petitions before me.