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Ram Lal Pahari Vs. Babulal Barik and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in25Ind.Cas.555
AppellantRam Lal Pahari
RespondentBabulal Barik and anr.
Cases ReferredBalkishen Das v. Bedmati Koer
Excerpt:
execution - benamidar decree-holder, application for execution by son of--step-in-aid of execution--limitation--compromise--assignment by benamidar, effect of. - 1. this case stands thus. in 1901 one narayan panday obtained a money-decree. he died in the year 1907 and in the same year two of his sons who happened to be minors applied for execution of the decree. after various proceedings which are not material, the application for execution was struck off and execution was never granted by the* court. after this had happened, the present appellant brought a suit in may 1909 for declaration against the sons of narayan panday that the decree obtained by the latter was obtained on his behalf, that is to say, that narayan panday was his benamdar in the matter. this was decreed on compromise in the same year and the terms agreed upon were that narayan panday was the benamdar and that the appellant should have the power to execute the decree. on the 1st.....
Judgment:

1. This case stands thus. In 1901 one Narayan Panday obtained a money-decree. He died in the year 1907 and in the same year two of his sons who happened to be minors applied for execution of the decree. After various proceedings which are not material, the application for execution was struck off and execution was never granted by the* Court. After this had happened, the present appellant brought a suit in May 1909 for declaration against the sons of Narayan Panday that the decree obtained by the latter was obtained on his behalf, that is to say, that Narayan Panday was his benamdar in the matter. This was decreed on compromise in the same year and the terms agreed upon were that Narayan Panday was the benamdar and that the appellant should have the power to execute the decree. On the 1st October 1910, an application was made for execution but was refused on the ground that it was time-barred. To this it is argued in appeal that the application by the sons of Narayan Panday dated the 7th December 1907 was a step-in-aid of the execution which has the effect of extending the period of limitation so as to include within it the application now before us. The question whether this is so, depends upon the question whether the application of the 7th December 1907 was made in accordance with law. It is now decided that Narayan Panday obtained the original decree as a benamdar of the appellant. What was the position then of the sons. It seems to be impossible for the appellant to put forward any other case than that, they succeeding through their father's inheritance also became benamdars on his behalf. But the question arises, how far the benamdar has power to execute decrees, and in this case there is a further question whether his sons can have that power. The decision in the case of Denonath Chuckerbutty v. Lalit Goomar Gangopadhaya 9 C. 633 : 12 C.L.R. 146 seems to show that the benamdar could not have the power in question. It is argued that the decision in the case of Balkishen Das v. Bedmati Koer 20 C. 388. distinguishes this case on the ground that when a decree is obtained by the person beneficially interested and is subsequently transferred to a person who takes it as a benamdar and execution is sought by him, the execution cannot be had. But according to this rule, whatever may be the position of Narayan Panday, in this case his sons at best can only be regarded as transferees from him or possibly from the appellant. In this view of the case they were not competent to make the application of the 7th December 1907, and that application cannot consequently be called in aid by the present appellant as a step-in-aid of the execution. The Rule laid down in the case in Balkishen Das v. Bedmati Koer 20 C. 388. does not apply to this case as the execution in the present case was never allowed by the Court to be carried into effect. The appellant has sought to argue the case on the ground that the compromise of July 1909 acted as an assignment. We cannot, however, accede to this point of view, because at most the two sons of Narayan Panday were like him mere benamdars, and we must take it that they had no interest 'of any kind in the decree. Consequently the act of assignment could not be valid, since there was nothing for them to assign. No notice was given to the judgment-debtor and there is no indication that it has ever been treated as an assignment before the present occasion.

2. The result is that we dismiss the appeal with costs, the hearing-fee being assessed at two gold mohurs.


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