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Balkishen Das and ors. Vs. Bedmati Koer and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1893)ILR20Cal388
AppellantBalkishen Das and ors.
RespondentBedmati Koer and anr.
Cases ReferredNadir Hossein v. Pearoo Phovildarinee
limitation act (xv of 1877), schedule ii, article 179 - civil procedure code (act xiv of 1882), sections 232-248--application for execution by transferce of decree--benamidar. - .....for a sum of rs. 16,603, and the amount now said to be due is something over rs. 23,000. the execution proceedings have been taken in the court of the second subordinate judge of muzaffarpur, which is the court which passed the decree.3. on the 19th december 1887 bhokola das applied, under section 2321 of the civil procedure code, to execute the decree, claiming as transferee under a written assignment from the decree-holders. the notices prescribed by that section were issued, and, no opposition being offered, the subordinate judge directed, on the 27th january 1888, that bhokola's name should be substituted as decree-holder, and that the notices prescribed by section 248 should issue. after service had been reported, the case was struck off for default on the 8th march, but was.....

Macpherson and Banerjee, JJ.

1. The appellants, who are the purchasers of a decree, contend that the Subordinate Judge was wrong in holding that execution was time-barred under Article 179 of the second schedule of the Limitation Act.

2. In January 1885 Peary Lall Das and two others obtained the decree in question against Dulari Koer. The decree was obtained on a mortgage-bond for a sum of Rs. 16,603, and the amount now said to be due is something over Rs. 23,000. The execution proceedings have been taken in the Court of the Second Subordinate Judge of Muzaffarpur, which is the Court which passed the decree.

3. On the 19th December 1887 Bhokola Das applied, under Section 2321 of the Civil Procedure Code, to execute the decree, claiming as transferee under a written assignment from the decree-holders. The notices prescribed by that section were issued, and, no opposition being offered, the Subordinate Judge directed, on the 27th January 1888, that Bhokola's name should be substituted as decree-holder, and that the notices prescribed by Section 248 should issue. After service had been reported, the case was struck off for default on the 8th March, but was restored on Bhokola's application of the 12th March. Execution then proceeded, and on the 16th May 1888 the mortgaged property was put up to sale. There were, however, no bidders, and as no further steps were taken, the execution case was struck off on the 29th May 1888.

4. Shortly either before or after this--it is not clear which--the decree was attached in the Court of the District Judge by the appellants, who alleged that Bhokola was merely the benamidar of the decree-holders, and on the 24th November 1888, the Judge found this allegation to be true.

5. Nothing further was done till the 29th November 1890, when Bhokola again applied to execute the decree against persons who were alleged to be, but were in fact not, the legal representatives of Dulari Koer, then deceased. On the 31st January the application was admitted as a fresh application for execution, and notices issued under Clauses (a) and (b) of Section 248. The alleged representatives came in, and on their objection that they were not the legal representatives of the deceased judgment-debtor, the Subordinate Judge, on the 21st March 1891, refused the application. On the same day the appellants, representing that they had purchased the decree of Peary Das, applied for time, in order that the objections of the representatives might be disposed of in their presence, but the application was refused on the ground that they were not parties to the proceedings.

6. On the 21st July 1891 the appellants formally applied under Section 232 to execute the decree against the proper representatives of Dulari Koer, and they put in the deed of assignment by Peary and an ikrarnama by Bhokola, in which he disclaimed all interest in the decree, and admitted that it had bean only nominally transferred to him for the purposes of defeating the claim of the attaching creditors.

7. The Subordinate Judge has held, on the facts as above stated, that the last application is time-barred, an objection to that effect having been taken by the heirs who came in on notice under Section 248. He holds [citing Denonath Chuckerbutty v. Lallit Coomar Gangopadhya I.L.R. 9 Cal. 633 and Gour Sundar Lahiri v. Hem Chunder Chowdhry I.L.R. 16 Cal. 355] that the applications of Bhokola as benamidar of the decree-holders were not applications in accordance with law within the meaning of Article 179 of the second schedule of the Limitation Act, and that putting them aside more than three years had elapsed from the date of the decree. He also holds that, even if the earlier applications were good, the application of the 19th November 1890 was bad, because it was made against persons who were not the legal representatives of the deceased judgment-debtor, and that putting it aside more than three years had elapsed from the 29th May 1888, when the execution case was struck off.

8. The two cases cited are, we think, clearly distinguishable from the present case, on the ground that the applications there relied upon and which the Court had to consider were made by a benamidar whose position as transferee was not recognised, and who was not allowed by the Court in the discretion vested in it to execute the decree. In the first case the application was opposed by an attaching creditor, and the application was withdrawn without any order being made upon it; in the second the learned Judges, speaking of the applications with which they were dealing, say that in none of those applications was any further step taken towards execution of the decree or any order made for substitution of the name of the assignee. It was held in each case that the applications were not in accordance with law within the meaning of Article 179, and, if we may say so, rightly, as the applicants without the permission of the Court could not represent decree-holders and had no status under Section 232. The decisions were, no doubt, based on a broader ground and professedly followed the earlier case of Abdul Kureem v. Chuk-hun 5 C.L.R. 253 decided by Mitter and Tottenham, JJ. This case was the converse of the one before us. There the decree-holder transferred his decree to A in the name of B who applied for execution, and had his name substituted, but did nothing more. Some time afterwards A as the real transferee applied for execution; the application was refused, but a subsequent application to the same effect was allowed. On B's admission that he was a benamidar, it was necessary, in order to avoid limitation, to bring in A's first application which had been refused, and the learned Judges held that it was within the purview of Section 232, and, therefore, in accordance with law, and they, did so on the broad ground that a benamidar was not a transferee within the meaning of Section 232 and had no status at all under that section, even if the Court allowed him to execute the decree. But nothing in that case turned on the application of B, it was unnecessary to consider the effect of that application, or of proceedings in execution taken under it with the sanction of the Court. All that was actually decided was that there being an admitted transfer of the decree to A or B, the application of A, the real and admitted transferee, was a good one. We think we need give to the decision no wider effect. The question whether an application for execution by the real transferee of a decree, where the transfer is made benami and the application is not allowed, will keep the decree alive, and whether the transferee is entitled to execute the decree when objection is taken to his right to do so and the Court finds that he is a mere benamidar, is quite distinct from the question whether an application for execution by an alleged transferee of a decree who is allowed by the Court to carry on the execution, and who is afterwards admitted or proved to be a mere benamidar will keep a decree alive, and an answer to the former in favour of the real transferee, does not, in our opinion, necessarily involve a negative answer to the latter. The former question was the only one which the Court had to consider in the case of Abdul Kureem v. Chukhun, whereas in the present case we have to deal only with the latter.

9. It was held in Purria Chandra Roy v. Abhaya Chandra Hoy 4 B.L.R. App. 10 that a benamidar could execute a decree, and this case goes very much further than we need go. The only case we can find that deals directly with the question now before us is the case of Nadir Hossein v. Pearoo Phovildarinee 14 B.L.R. 425 note : 19 W.R. 255. In that case it was held that the proceedings taken by a benamidar who was executing the decree would keep the decree alive. The facts of the case as regards the execution were very similar to the facts of this case. The decree-holder had nominally transferred the decree to another person in order to preserve it from the decree-holders against himself. The benamidar took some proceedings in execution, although his application to execute was subsequently disallowed on the ground that he was only a benamidar. Kemp and PONTIFEX, JJ., held that the proceedings taken kept the decree alive, and they overruled the objection that the proceedings must be taken by a person legally and rightfully entitled to the decree.

10. These cases were, it is true, governed by the Code and the Limitation Act. of 1859, but there is, we think, no substantial change in the law. Sections 207 and 208 of the Code of 1859, and Sections 230-2322 of the present Code alike require that an application for execution should be made by the holders of the decree, or (with the sanction of the Court) by the person to whom it has been transferred by assignment or by operation of law, and a person who is a transferee within the meaning of the one is certainly a transferee within the meaning of the other. Nor has Article 179 of the Limitation Act made any real change in this respect. The words 'in accordance with law' mean, as we understand them, in accordance with the law relating to the execution of the decrees, and it cannot be said that a person who executes a decree with the permission of the Court--a permission which the Court is expressly empowered to give--is not doing so in accordance with law What he does, whether he is the beneficial owner or not, is as between himself and the judgment-debtor perfectly good for the purpose of the execution, and all that is required is that it should be done in accordance with law.

11. Under Section 232 the Court, after giving notice to and hearing the objections (if any) of the decree-holder and judgment-debtor, has an absolute discretion to allow or to refuse to allow execution to proceed at the instance of a person to whom a decree has been transferred by an assignment in writing, and as between the decree-holder and the judgment-debtor the effect of the sanction is, it seems to us, to place the person who acts under it and proceeds with the execution in the place of the decree-holder for the purpose of the execution, whether the transfer is real or nominal. The legality of the proceedings taken in pursuance of an application made and allowed under Section 232 must depend not on the reality of the transfer, but on the sanction accorded; and if the result was to obtain satisfaction wholly or in part, we know of no authority for the proposition that the proceedings would, as regards the judgment-debtor, be invalid, merely because the person at whose instance they were taken with the sanction of the Court turned out to be a benamidar of the decree-holder. It was in this case a mere accident that the property, when put up to sale by Bhokola, was not sold. It may be that the Court would not and should not accord sanction under Section 232 if it knew that the applicant was a benamidar; but in the absence of objection it can have no knowledge on this matter, and it was not, we think, intended to in any way limit its discretion or invalidate on that account what has been done under the sanction. The object is to obtain satisfaction, and the judgment-debtor gets the full advantage of what is realised from him. Nor is the intention of the decree-holders to commit a fraud on a third person any reason for enabling the judgment-debtor, by ignoring the acts of the benamidar, to escape payment of a just debt, especially when, as in this case, to give effect to the judgment-debtor's objection would be to enable him to defeat the claim of the very person whom it was the original decree-holder's intention to defraud.

12. When, therefore, a decree is transferred really or nominally by assignment in writing, and the ostensible transferee executes the decree with the permission of the Court, the proceedings taken and the application on which they are based, are, we think, in accordance with law as between him and the judgment-debtor, although he may be merely a benamidar, and this is all that is required to keep the decree alive. It would certainly be anomalous if a person who purchased a decree from a benamidar, under circumstances which would give him a good title as against the real owner, could not take advantage of the proceedings which the benamidar had taken to keep the decree alive against the judgment-debtor, and the real owner, if there was no fraud on the judgment-debtor, would be in no worse position.

13. We must hold, therefore, that Bhokola's applications of the 9th December 1887 and the 17th March 1888, which led to the properties being put up to sale, were in accordance with law within the meaning of Article 179, or had the effect of keeping the decree alive. The same effect must also be given to the application of the 19th November 1890, so far as the benami question is concerned, as it was made by a person who had been executing the decree under the sanction of the Court which was still in force.

14. It remains to consider whether the last-mentioned application was bad on the ground that it was made against persons who were not the legal representatives of the deceased judgment-debtor. There is no reason to doubt that the application was bond fide and that the persons cited were believed to be the legal representatives. They were, in fact, the reversionary heirs, although the proper representative was the daughter of the deceased judgment-debtor. We think the mistake does not invalidate the application, and that, even if it could not be properly regarded as an application under Section 234 by reason of the mistake, it would still be an application to take a step in aid of the execution. There might be it reasonable doubt as to who the legal representatives were, and no safer course could be followed than to cite the persons who were believed to hold that position.

15. It was contended for the respondents that the appellants had no locus standi under Section 232 or any other section of the Code, as they merely claimed as transferees, and the Court had not recognised them as such or made any order allowing the decree to be executed at their instance. The respondents did not, however, contend in the Lower Court that the decree had not been transferred to the appellants, or that the latter should not be allowed under Section 232 to execute it. Their contention was that the decree was time-barred. This was the question they raised, and which the Court, at their request considered and determined, and having determined it in their favour, the Court could not order that execution should proceed. We see no force in this contention.

16. We must, for the reasons given, set aside the order of the Subordinate Judge refusing to allow execution on the ground that it is barred under Article 1.79 of the Limitation Act. It is said that other objections were taken which have not been disposed of. If this is so, the Subordinate Judge must, of course, dispose of them before making an order for execution.

17. The appellants will get their costs in this Court.

1 Application by transferee of decree.

[Section 232 : If a decree be transferred by assignment in writing or by operation of law, from the decree-holder to any other person, the transferee may apply for its execution to the Court which passed it, and, if that Court thinks fit, the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:

Provided as follows:

(a) Where the decree has been transferred by assignment, notice in writing of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to such execution:

(b) Where a decree for money against several persons has been transferred to one of them, it shall not be executed against the others.]

2 Application for execution.

[Section 230 : When the holder of a decree desires to enforce it, he shall apply to the Court which passed the decree or to the officer, if any, appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court, then to such Court or to the proper officer thereof.

The Court may in its discretion refuse execution at the same time against the person and property of the judgment-debtor.

Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates (namely)--

(a) the date of the decree sought to be enforced or of the decree (if any) on appeal affirming the same, or

(b) where the decree or any subsequent order directs any payment of money, or the delivery of any property, to be made at a certain date--the date of the default in making the payment or delivering the property in respect of which the applicant seeks to enforce the decree,

Nothing in this section shall prevent the Court from granting an application for execution of a decree after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application.

Notwithstanding anything herein contained, proceedings may be taken to enforce any decree within three years after the passing of this Code, unless when the period prescribed for taking such proceedings by the law in force immediately before the passing of this Code shall have expired before the completion of the said three years.

Application by joint decree-holder.

Section 231 : If a decree has been passed jointly in favour of more persons than one, any one or more of such persons, or his or their respresentatives, may apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the representative in interest of the deceased.

If the Court sees sufficient cause for allowing the decree to be executed on an application so made, it shall pass such order as it deems necessary for protecting the interests of the persons who have not joined in the application.

Section 232 : q.v. supra, 20 Cal. 391.]

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