1. These two appeals arise out of a proceeding in execution of decree obtained by the respondent against Sarat Chandra Das, husband of the appellant, Amiya Probha Das, and others, on 30.5-1941 in Suit No. 1840 of 1940 in the original side of this Court. The claim in that suit was based on a hand-note executed by Sarat Das and others in favour of the father of the respondent, in Mymensingh. It was subsequently assigned to his son, the present respondent, in Calcutta. The decree was transferred to the District of Mymensingh for execution in March 1943 and the decree-holder prayed for attachment and sale of eleven lots of property. The judgment-debtor, Sarat Das, preferred an objection under Section 47, Civil P.C., to the execution on the ground that the decree was made without jurisdiction. The appellant, Amiya Das, preferred a claim under the provisions of Order 21, Rule 58, Civil P.C., to lot 4, a holding in village Dhamsur with the structures thereon described separately as lot 8, and to lot 6, a holding in village Mallikbari with the structures thereon described separately as lot 7.,
2. Miscellaneous cases were started on account of this objection and claim. Judgment-debtor, Sarat Das, died during the pendency of these cases and the appellant Amiya Das, who was his only heir, was brought on the record as his representative. Both cases were heard together and were dismissed. The learned Sub-ordinate Judge held that the objection under Section 47, Civil P.C., could not be sustained since there was nothing on the face of the record to show that the decree was made without jurisdiction, and after consideration of the evidence he came to the conclusion that lots i and 8 of village Dhamsur and lots 6 and 7 of village Malikbari belonged to the judgment-debtor, Sarat Das, and were in his possession up to the time of his death. Amiya Das has now appealed against these decisions.
3. A preliminary objection was taken by Mr. Das for the respondent with regard to the competency of Misc. Appeal No. 4, which is directed against the decision in respect of the appellant's claim made originally under Order 21, Rule 58, Civil P.C. His contention is that by reason of the provisions of Order 21, Rule 63 no appeal lies against the order rejecting the claim. Having regard, however, to the principles laid down in the Full Bench decision, Panchanan Bandopadhya v. Rabia Bibi ('90) 17 Cal. 711 (F.B.), we are of opinion that the decision regarding the claim of Amiya Das which was made at a time when she had by the death of her husband become the representative of the judgment-debtor, was a decision under Section 47, Civil P.C. It is true, as pointed out by Mr. De, that some distinction may be made between the facts of the case which led to the Full Bench decision referred to above and the present one, in which the wife of the judgment-debtor preferred her claim before she became his representative, but we think that fact makes no difference in principle and we are satisfied that the decision against which Misc. Appeal No. 1 has been preferred is clearly on a question 'arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution discharge or satisfaction of the decree.' In our opinion, therefore, the appeal is competent.
4. On the merits, we think the appellant is entitled to succeed so far as the Mallikbari property is concerned. Amiya Das claimed that property by virtue of a settlement from the landlord on payment of Rs. 210 as Nazar, after the holding had been sold in auction in execution of a decree for arrears of rent and purchased by the landlord. That the holding was sold for arrears of rent, purchased by the landlord and settled in the name of Amiya Das is not disputed. The onus was therefore on the decree-holder to prove that this was a benami transaction. No evidence was however adduced in support of such a contention. On the other hand, evidence of settlement with the appellant has been given by the appellant herself and by her witnesses Nos. 1, 2 and 7. These witnesses have given evidence also of payment by her of the Nazar of Rs. 210. P.Ws. 1 and 2 may have some reason for deposing in the appellant's favour but we can find no reason to distrust the evidence of P.W. 7.
5. The learned Subordinate Judge based his decision regarding the benami nature of the transaction mainly on inferences drawn from the fact that the judgment-debtor allowed this property to be sold for arrears of rent at a time when he was in financial difficulties and when the attachment and sale of his property in execution of decree was not unlikely. In the absence of any evidence for the decree-holder and in view of the positive evidence on the side of the appellant, we do not think such inferences were at all sufficient to justify the conclusion that the transaction was a benami one. There was nothing inherently improbable in the judgment-debtor being unable to pay the arrears of rent, and there could certainly have been no guarantee that the property if put up to sale would be purchased by the landlord and settled with the judgment debtor's wife. There is absolutely no evidence of any collusion between the landlord and the appellant in this matter, or of the inability of the appellant to pay the sum of Rs. 210 as Nazar. We have no hesitation therefore in holding that her claim to the Mallikbari holding has been established.
6. With regard to the structures on the Mallikbari property, Amiya Das and her witnesses 1, 2 and 3 have deposed that these were erected at her cost and that she was in a position to pay such a sum; and there is no evidence to rebut the testimony of the appellant and her witnesses on these points. The amount said to have been spent on these structures is between Rs. 300 to Rs. 500 and in the absence of any evidence to the contrary, we cannot say that the appellant had not the means to pay this amount. It is moreover common ground that the original buildings on the Mallikbari property were dismantled and the materials removed and in view of the settlement of the Mallikbari with Amiya Das, there seems to us nothing improbable in the erection of the new buildings on that property at her cost. In consideration of the evidence and facts as a whole, we are of opinion that her claim to these structures has also been established.
7. The position with regard to the Dhamsur property is however different. It is the case for the appellant that this holding was settled with her in korsha right by her husband. No lease was granted and the only documentary evidence in support of the alleged settlement consists of three dakhilas which have neither been signed by Sarat Das nor proved by his officer Chandi Kumar Nandi by whom they purport to have been granted. The transaction is certainly suspicious in nature, and the onus was clearly on the appellant to prove the settlement and the erection of the structures at her cost. Apart from her own statement, evidence of the Korsha settlement has been given only by her uncle-in-law, Rajendra Sarkar, P.W. 1 and by Aftabuddin Choudhury P.W. 2, Rajendra Chakravarty, P.W. 3 and Rajani Kanta Sarkar, P.W. 4. Aftabuddin Choudhury and Rajendra Ghakravarty were close friends of Sarat Das or his father, and so likely to support the appellant, whilst Rajani Kanta's admission that he did not know that Sarat Das had any right in the Dhamsur property, and his contradictory statements about the year and place of the alleged settlement indicate that he is not a witness on whom reliance can be placed. The reason given for the Korsha settlement seems to us far from satisfactory, and the whole story of an oral settlement appears most improbable.
8. As regards the structures in the Dhamsur property, the case for the appellant is that those were erected at her cost for about Rs. 4000. The source of the money is said to have been the sale of ornaments, receipts of various small sums from her mother and mother-in-law and 'Asirbad' money given at the time of her marriage. According to the appellant, the main source was the 'Asirbad' money amounting toss. 800. This, it is said, was kept with her uncle-in-law Rajendra Sarkar, who invested it on her behalf, but the appellant could not say what amount was realised by this investment. Rajendra Sarkar makes no mention of the receipt or investment of this sum by him, and except for a vague statement of Rajendra Chakravarty who-admits that he was not present when any money was given to Rajendra Sarkar, there is no corroboration of this part of the appellant's evidence, or of her claim to have received money from her mother or mother-in-law. Hriday, P.W. 8 alone corroborates the evidence of the appellant that she received Rs. 500, by the sale of her ornaments but even if that evidence be accepted, we think there is no adequate proof that she had sufficient means to construct the buildings on the Dhamsur property. It is admitted that the buildings on the Mallikbari property were dismantled and in the absence of any satisfactory evidence as to the disposal of the materials, we think it most probable that these were used for the construction of the new borne at Dhamsur. Lai it Mohan Mistri, P.W. 5, admits that all the sheets used for the Dhamsur house were used materials, though he says of course that they were not brought from the Mallikbari house. However that may be, on consideration of the evidence as a whole we agree with the view of the learned Subordinate Judge that the story of the appellant's taking korsha settlement and erection of the buildings on the Dhamsur property with her own money cannot be accepted. We think therefore that her claim to that property was rightly rejected.
9. With regard to Misc. Appeal No. 5, Mr. Bakshi has contended that as the hand-note was executed, the consideration paid, and the defendants are resident outside Calcutta, the High Court in the original side had no jurisdiction to try the suit in which the decree sought to be executed was passed. It is, however, not disputed that the assignment of the decree in Calcutta will constitute a part of the cause of action and it is conceded that there would be no want of jurisdiction if leave to sue in the original side was obtained. We must assume, prima facie, that the Court had jurisdiction unless absence of jurisdiction is apparent on the face of the record, and we agree with the learned Subordinate Judge in holding that no absence of jurisdiction is apparent. Moreover, we find a clear admission in the written objection of the judgment-debtor that he was aware of the institution of suit in the original side of this Court for recovery of the amount claimed on the hand-note. The suit, it is said, was not contested because of an assurance given by the decree-holder's father that the decretal amount would be realised from other judgment-debtors. There is no reason to suppose that the necessary leave was not obtained in accordance with Clause 12, Letters Patent, and it is well settled that where leave has been granted and where the propriety of the grant is challenged, the proper course is for the defendant to apply at the earliest opportunity for revocation of the grant. The decisions Kalooram Agarwalla v Jonishtalal Chakrabarti : AIR1936Cal349 , Daulat Ram v. Maharajlal : AIR1936Cal219 , Harnathrai v. Sew Prosad Singh : AIR1936Cal230 and Radhika Mohan v. Bhobani Prosanna ('36) 40 C.W.N. 717 may be referred to in this connection. Although the defendant judgment, debtor was aware of the suit, he took no steps to revoke the leave or to set aside the decree and we agree that he cannot now be permitted in course of execution proceedings to claim that the decree was without jurisdiction on this ground. We think this matter was decided correctly by the learned Subordinate Judge, and this appeal must therefore be dismissed.
10. In view of the conclusions reached above, we allow Misc. Appeal No. 4 in so far as it relates to the appellant's claim to the Mallikbari property, and we direct that the execution case shall nut proceed against that property, i.e. lots 6 and 7, of the execution petition, and; that such property shall be released from attachment forthwith. The appeal in regard to the Dhamsur property, lots 4 and 8 of the execution petition is dismissed. We make no order as to the costs of these appeals.
B.K. Mukherjea, J.