1. The question which has been referred reads as follows:
Whether it is open to a person who is not eo nomine the decree-holder or the transferee of the decree, to apply for its execution on the ground that he is the real owner?
2. As we intend to confine our answer to a case where the facts are similar to those of the present case, it is necessary for us to state them, in so far as they are relevant to the question. One Nookala Manickamma sued the respondents in the Court of the Subordinate Judge of Chittoor to enforce payment of the amount due on a promissory note which had been executed in her favour and on 9th September 1936, she obtained a decree for the payment of Rs. 6175-3-0 with costs. The appellant who was joint with his father alleges that the promissory note constituted an asset of the family and that Nookala Manickamma held it as the benamidar of his father who was the manager. Nookala Manickamma and the appellant's father died before 8th December 1939. On that date the appellant instituted proceedings in execution in the Court of the Subordinate Judge. He claimed to be entitled to execute the decree for two reasons. In the first place, he said that he was the legal representative of the decree-holder and in the second place, that he had become the real owner of the debt embodied in the decree. The Subordinate Judge held that the Court could not go behind the decree and commence an investigation into the question whether it constituted the property of the family then represented by the appellant. He was also of the opinion that the plea that Nookala Manickamma held it as a benamidar could not in law be advanced. Consequently, the Subordinate Judge held that the appellant was not entitled to institute proceedings in execution until he had obtained, as the representative of Nookala Manickamma, a succession certificate in respect of the decree.
3. The learned Judges who have made this reference have pointed out in their order that if the property represented by the decree belonged to the joint family consisting of the appellant and his father it was not necessary for the appellant to produce a succession certificate in order to realize it, since it had devolved upon him on the death of his father and they did not agree with the opinion that a person could not hold a promissory note as a benamidar. They felt constrained to make the reference because of the conflict which exists between the decision of this Court in Manikam v. Tatayya (1994) 21 Mad. 388 and Palaniappa Chettiar v. Subramania Chettiar A.I.R. 1925 Mad. 701 In the former of these two cases Shepherd and Subramania Ayyar JJ. held that if a, decree is transferred to a person acting as the banamidar for the actual purchaser, the latter was entitled to execute it under Section 232, Civil P.C., 1882. ln that case ond Lakshmisetti Subrayudu obtained a decree for the payment of money and one Patti Subrayudu applied for execution on the ground that he was the transferee of the decree. The appellant alleged that he and his brother were the real transferees and that Patti Subrayudu was merely a benamidar for them. On this footing he himself applied to execute the decree. The learned Judges being of the opinion that the person entitled to the beneficial interest in the decree could apply for execution directed the executing Court to inquire and submit a finding on the question whether Patti Subrayudu was the real transferee or whether the appellant and his brother occupied that position.
4. Order 21, Rule 16 of the present Code corresponds to Section 232 of the Code of 1882. Order 21, Rule 16 embodies certain amendments, but so far as this case is concerned, the provisions are the same. Order 21, Rule 16 provides that where a decree is transferred by an assignment in writing or by operation of law the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder. InPalaniappa Chettiar v. Subramania Chettiar A.I.R. 1925 Mad. 701 Coutts-Trotter C.J. and Srinivasa Ayyangar J. expressed strong dissent from the decision in Manikam v. Tatayya (1994) 21 Mad. 388 and refused to follow it. They had no power to overrule it and the proper course, as was laid down in Seshamma v. Venkata Narasimharao A.I.R. 1940 Mad. 356 was to refer the question to a Full Bench. They did not, however, do so and proceeded to hold that where a decree has been transferred in writing only the transferee can apply in execution. They considered that it mattered not that the transferee was a benamidar for the person who sought to execute it. It may be mentioned that this decision was followed by the Lahore High Court In Gurdial Singh v. Gourbaksh Singh A.I.R. 1927 Lah. 110 and the Patna High Court in Mohamed Anas v. Bhupendra Prasad : AIR1938Pat457 but it was dissented from by the Calcutta High Court in NiIkantha Ghosal v. Ramachandra Roy : AIR1928Cal835 . In Manikam v. Tatayya (1994) 21 Mad. 388 and also in Palaniappa Chettiar v. Subramania Chettiar A.I.R. 1925 Mad. 701 the alleged benamidar was alive. Here she is dead and in Kristam Naidu v. Dnrvada Patrudu A.I.R. 1927 Mad. 903 this Court considered that this distinction avoids the controversy which arose in Manikam v. Tatayya (1994) 21 Mad. 388 and Palaniappa Chettiar v. Subramania Chettiar A.I.R. 1925 Mad. 701 Kristam Naidu v. Dnrvada Patrudu A.I.R. 1927 Mad. 903 was decided by Odgers and Curgenven JJ. who held that where a transferee of a decree has died, the Court in which execution proceedings have been instituted may inquire whether the transferee was really a benamidar for another and allow the real owner or his representative to execute the decree. The basis of the decision is to be gathered from the following passage in the judgment of Curgenven J.:
Following Palaniappa Chettiar v. Subramania Chettiar A.I.R. 1925 Mad. 701 it is no doubt true that the real owner of a decree cannot claim under Order 21, Rule 16, to execute it where it has been transferred in writing to the name of a benamidar for him. But once the benamidar is dead, this decision does not appear to me to be any authority for the position pressed upon us, that the real owner still cannot be heard to say that the decree is his; nor I think, have we been shown any authority for the proposition. Once the benamidar is dead, the question necessarily arises: Who is his representative, or, to use the language of Order 21, Rule 16, who is his transferee by operation of law? In the ascertainment of this, there does not appear to be any provision in the Code, or any other authority, requiring the executing Court to exclude the real owner from coming forward and proving that the decree is his property. We have been shown nothing in support of the contention that, in such circumstances, the ostensible owner is to be regarded as the real owner for the purpose of ascertaining his representatives.
5. We think that this distinction may be accepted. If A in fact holds a decree as benamidar for B, on, A'a death his heirs cannot claim it as their property. The decree is the property of B and death has removed the nominal holder from the scene. Why should not B in these circumstances ask the Court to execute the decree at his instance on the ground that by operation of law he has obtained a complete title to it? As we are of the opinion that the decision in Kristam Naidu v. Dnrvada Patrudu A.I.R. 1927 Mad. 903 should be followed here we answer the question referred in this way: Where a decree is held by one person as a benamidar for another and the holder dies, the true owner can apply for execution and if his title is disputed, the question can be decided in those proceedings. The conflict between Manikam v. Tatayya (1994) 21 Mad. 388 and Palaniappa Chettiar v. Subramania Chettiar A.I.R. 1925 Mad. 701 remains. It will have to be settled, but this does not appear to us to be the occasion and consequently we have avoided expressing any opinion on the matter. The costs of this reference will be made costs in the appeal.