NAMDEO DIGAMBER GAIKWAD Vs. VIJAYKUMAR RAMCHANDRA SHAHA

JUDGEMENT

(1.) This is an appeal under Letters Patent against the summary dismissal of the execution appeal of the Judgment-debtors 8 to 10 by Mr. Justice Tarkunde under Order 41 Rule 11 of the Civil Procedure Code.

(2.) The facts necessary for the decision of this appeal are as follows:- On February 17, 1923, one Ram-chandra Raoji Shah advanced on mortgage a sum of Rs. 2500/- to Dixit family. After this he filed a suit, being suit No. 626 of 1936. As the defendants were agriculturists, accounts were taken under the provisions of Deccan Agriculturists Relief Act, 1879, and eventually a decree dated April 6, 1937 was passed for a sum of Rs. 5000-5-3 and costs of the suit, the costs being a sum of Rs. 497-5-0. The decretal amount was payable by annual instalments of Rs. 800/- each, the first Instalment being payable on 31st March 1938. The decree also provided that if there was default in the payment of any instalment, the judgment-debtors do pay interest on the balance due to the plaintiff at the rate of 6 per cent per annum from the date of default (in the payment of instalment) and that the mortgagees be entitled to sell the property under Section 15-B of the Act. It is accepted that no instalment was paid. An application was therefore made by Ramchandra Shah on 31st March 1941, being Darkhast No. 541 of 1941, for recovery by execution, of four instalments which then had fallen due. The defendants judgment-debtors contended that the decree should be sent for execution to the Collector under the provisions of Schedule III of the Civil Procedure Code. The papers were forwarded to the Collector. Immediately within a short time the Bombay Agricultural Debtors Relief Act, 1939, came into force and after the Board was constituted for this area, all the papers were forwarded to the Board at the request of the judgment-debtors for settlement of the debt due under the decree. The papers were sent to the Board on 22nd April 1942. After that that Act was replaced by another Act, being Bombay Agricultural Debtors Relief Act. 1947, and the matter stood transferred to the Court. The Court returned a finding that the case was not governed by the B. A. D. R. Act and therefore directed the execution proceedings to be sent to the regular side and proceeded with. This order was made on 13th March 1947 and the papers were actually transferred to the regular Court on 29th August 1947. In the meantime the decree-holder on 2nd August 1946 assigned the decree by executing a registered assignment deed in favour of one Ganpatrao Deshmukh. Within a short lime after the execution of the assignment deed, Ramchandra Shah died on 16th March 1947. The heirs of the decree-holder did not come forward to prosecute the Darkhast. But on 2nd of September 1947 the assignee made an application under Order 21 Rule 16 for being brought on record and allowed to execute the decree. When notice of this proceeding was issued to the judgment-debtors, they took up the contention that the assignment in favour of Ganpatrao Deshmukh was as a benamidar for themselves and therefore, he had no right to execute the decree against them. They contended that the decree-holder settled the matter by accepting Rs. 1700/-in full satisfaction of the decree. As they had not got that amount with them, they requested Ganpatrao Deshmukh to pay the same to the decree-holder which he paid and as Security for the fulfilment of a contract of sale of certain land to him for the amount so paid he took this assignment deed but it was agreed that he was not to execute this decree against them. In this application notice was also sent to the heirs of the decree-holder who appeared in those proceedings. They seem to have contended that their father was deceived into giving the assignment and that the assignee did not obtain any rights to execute the decree under the terms thereof. They also offered to pay back Rs. 1700/- to the assignee reserving the rights and remedies regarding execution of the decree against judgment-debtors.

(3.) The executing Court by its judgment and order dated 14th April 1949 upheld the contention of the judgment-debtors that the assignment was taken by the assignee as benamidar for the judgment-debtors with an understanding that the decree was not to be executed. It did not give any finding on the contention raised by the son of the decree-holder and naturally so. The plea of deceit was very vague and no particulars thereof were given. As has been often pointed out that such plea is no plea. The party relying on fraud or deceit must give the facts on which such allegation is founded. No issue was also pressed on that point. The assignee came to this Court in appeal which was heard by Mr. Justice Vyas on 22nd September 1950 who dismissed it. Against this judgment the assignee filed an appeal under the Letters Patent, being Appeal No. 51 of 1950 which was dismissed by Mr. Justice Bhagwati and Mr. Justice Dixit on 24th January 1952. They upheld the findings of both the Courts that Rs. 1700/- were paid by the assignee on behalf of the judgment-debtors and that the amount was paid for and on behalf of the judgment-debtors as part and parcel of adjustment which was not certified. They also upheld the contention that the assignee was acting as the benamidar of the judgment-debtors and on this ground the Court held that the benamidar could not execute the decree against the judgment-debtors. It may also be mentioned that on the same date on which the executing Court dismissed the application of the intervener assignee, (April 14, 1949) it also dismissed the darkhast filed by Ramchandra Shah on the ground that the heirs of the decree-holder had not come forward to execute the decree. There was no appeal from that order and that order to-day stands as final,