OM PRAKASH Vs. MADAN GOPAL GUPTA

JUDGEMENT

(1.) THIS appeal arises out of proceedings under Order 21, Rule 16, Civil Procedure Code in an execution case.

(2.) THE brief facts are that the Banaras Electric Light and Power Supply Co., Ltd., Banaras obtained a decree against the Parbati Hemp Bailing Press owned by a firm styled as Radhakrishna Shivadutta Rai in which Ram Kumar and Madan Gopal Gupta were the partners. The Electric Company put its decree in execution. The decree was, however, sold during the pendency of the execution on 28-4-1967 to Om Prakash appellant. He applied under Order 21, Rule 16, Civil Procedure Code for substitution of his name in place of the original decree-holder. The judgment-debtors opposed the same and filed objections stating, inter alia, that Om Prakash was a man of no substance, that he did not have the capacity to purchase the decree on payment of Rs. 9,500.00 to the original decree-holders, that the decree was actually purchased by Mahabir Prasad who was the grandson of Ram Kumar (one of the judgment- debtors). It may be noted that during the pendency of the execution Ram Kumar died and his grandson Mahabir Prasad was substituted as his legal representative. It is also mentioned in the objections that Mahabir Prasad was on inimical terms with Madan Gopal Gupta (judgment-debtor) and so the former had really purchased the decree in order to harass Madan Gopal Gupta and others. It was further urged that the purchase by Mahabir Prasad as one of the judgment-debtors amounted to full satisfaction of the decree within the meaning of the second proviso to Rule 16, Order 21, C. P. C. and it could not be executed against the other judgment-debtors.

(3.) SRI Rajeshwari Prasad, learned Counsel for the appellant, has placed reliance on the provisions of Rule 16, Order 21, Civil Procedure Code and contended that the appellant being an assignee of the decree- holder was entitled to the execution of the decree. He also assailed the finding of the court below that the appellant was a benamidar of Mehabir Prasad who was the real purchaser of the decree. The learned Counsel for the respondents has, on the other hand, relied on the second proviso to Rule 16, Order 21, Civil Procedure Code and submitted that the application of Om Prakash was not competent and the decree was not executable against the judgment-debtors other than Mahabir Prasad. He also endeavoured to support the finding of the court below that Om Prakash was only an ostensible purchaser and that Mahabir Prasad was the real purchaser of the decree.