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Tahir Ali Vs. Abdul Goni Doctor and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.618
AppellantTahir Ali
RespondentAbdul Goni Doctor and ors.
Cases ReferredYad Ram v. Umrao Singh
Excerpt:
civil procedure code (act v of 1908), section 49, order xxi, rule 18 - benami--assignment of decree--transaction benami--execution in name of assignee--judgment-debtor's decree against decree-holder--both executions at same time--decrees, if can be set off--setoff. - .....upon the judgment-creditor who was the judgment-debtor in the other suit. it seems to me that having regard to section 49 of the civil procedure code that is not so section 49 of the civil procedure code says:every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder4. and that section read together with order xxi, rule 18, which deals with cases of execution of cross-decrees provides that set off of such decrees in such cases can be made. the judgment-debtor in this case, the respondent in this appeal, has no substance in his complaint at all and we think that the original order of the munsif is right and the order made by the subordinate judge on appeal is wrong.5. for these.....
Judgment:

Derbyshire, C.J.

1. This appeal must be allowed. The Subordinate Judge reversed an order of Mr. Roy--the Munsif, 1st Court of Sylhet which was dated July 5, 1933. The facts of the case shortly are these: A decree was obtained against the judgment-debtor. That decree was assigned to Tanir Ali--the present appellant. The assignee of the decree took steps to execute the decree and liberty was given by the Munsif--the first Court--to him to execute it. That order was then appealed against and the Subordinate Judge found that the assignment was not an out and out assignment of the decree but that it was a benami transaction. In my view it does not make any difference whether that was a benami transaction or whether it was an out and out assignment. The judgment-debtor could only have execution, levied upon him once by the Nazir and then the decree was satisfied. As for as he is concerned, he can not complain that one person levied against him rather than another person levied against him. A benami transaction is not an illegal transaction. That was held by Mr. Ameer Ali in the Privy Council case of Gur Narayan v. Sheolal Singh 46 C. 566 : 49 Ind. Cas. 1 : 17 A.L.J. 66 : 36 M.L.J. 68 : 9 L.W. 335 : 23 C.W.N. 521 : 1 U.P.L.R. (P.C.) 1 : 12 Bur. L.T. 122 : 46 I.A. 1(P.C.), decided in 1918,where Mr. Ameer Ali giving the judgment of the Privy Council said:

So long, therefore, as a benami transaction does not contravene the provisions of the law the Courts are bound to give it effect.

2. That settled a question which had been in controversy between some of the Courts in this country for some time. There is the case of Kamta Prosad v. lndomati 37 A. 414 : 29 Ind. Cas. 593 : 13 A.L.J. 557, in which the question whether a benamdar was competent to take out execution of a decree was argued and there Chamiar, C.J. giving judgment at p. 417 Page of 37 A-[Ed.] said:

Next it is contended that even if the appellants are benamdars they are entitled to maintain the application. All the reported cases upon the question whether a benamdar can execute a decree as the transferee thereof seem to have been decided by the Calcutta High Court, and we have been referred in the course of the arguments to a number of them. The net result of the Calcutta cases seems to be that a benamdar is not entitled to take out execution of a decree as the transferee thereof but if he succeeds in doing so his application for execution may in some cases be sufficient to save a subsequent application by the real decree-holder from the bar of limitation. The question whether a benamdar may take out execution of a decree as the transferee thereof does not seem to have been decided by any other High Court. But this Court agreeing with Bombay and Madras High Courts and differing from the Calcutta High Court has held that a benamdar may bring a suit of any kind in his own name, see Yad Ram v. Umrao Singh 21 A. 380 : A.W.N. 189, 130, which was a suit for sale,

3. and certain other cases were then cited. There was a difference of opinion there in the Courts as to whether a benamdar could bring an action in his own name. The Privy Council case just recited decided that he could. If that is so, there is no reason why he cannot issue execution in his own name. It is said here that there was hardship because the judgment-debtor had obtained a decree against the original decree-holder in this case and that if the transferee in this action were allowed to issue execution in his own name, the judgment-debtor in this action would be deprived of some rights; he would be liable to have execution issued upon him and would not be able to issue execution in respect of his decree upon the judgment-creditor who was the judgment-debtor in the other suit. It seems to me that having regard to Section 49 of the Civil Procedure Code that is not so Section 49 of the Civil Procedure Code says:

Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder

4. and that section read together with Order XXI, Rule 18, which deals with cases of execution of cross-decrees provides that set off of such decrees in such cases can be made. The judgment-debtor in this case, the respondent in this appeal, has no substance in his complaint at all and we think that the original order of the Munsif is right and the order made by the Subordinate Judge on appeal is wrong.

5. For these reasons the appeal must be allowed, the order of the lower Appellate Court must be set aside and that of the Court of first instance restored with costs here and in the lower Appellate Court. The hearing fee is assessed at one gold mohur.

R.C. Mitter, J.

6. I agree.


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